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HomeMy WebLinkAboutCable TV Providing Method of Franchising Const,Oper,Main. Ordinance w/Amendments 10/18/82t e9 AN ORDINANCE PROVIDING FOR THE METHOD OF FRANCHISING THE CONSTRUCTION, A, OPERATION AND MAINTENANCE OF A CABLE TELEVISION SYSTEM IN THE COUNTY OF HARNETT STATE OF NORTH CAROLINA BE IT ORDAINED BY the Board of Commissioners of the County of Harnett, State of North Carolina: Section 1. SHORT TITLE: This ordinance shall be known as the Harnett County Cable Television Ordinance. Section 2. PURPOSE AND AUTHORITY. In the public interest and for the promotion of the public health, safety, welfare and convenience and pursuant to statutory authority contained in N.C.G.S. Section 153A -137 and other applicable laws, the following rules are adopted, which rules set forth the conditions, limitations, restrictions and requirements under which a person may construct or cause to be constructed, operate and maintain a cable television system and engage in the business of providing a cable television service in the unincorporated areas of Harnett County. Section 3. DEFINITIONS. A. General. For the purposes of this Ordinance, the following words, phrases, terms abbreviations and their derivations shall have the meaning given herein. when not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, words in the singular number include the plural number, and words in the masculine, feminine or neuter gender include each of the other genders. The word "shall" is always mandatory and not merely directory. B. Access Channels shall mean those channels which are to be kept available by the franchisee for partial or total dedication to public access, educational access, local government access or leased access. C. "Cable Television System" shall mean any facility that, in whole or in part, receives directly, or indirectly over the air and amplifies•or otherwise modifies the signals transmitting programs broadcast by one or more television stations, radio stations or other electronic signals and distributes such signals by wire or cable to subscribing members of the public who pay for such service, but such ME Lk t6im shall not include (1) any such facility that serves fewer than 75 subscribers, (2) any such facility that serves only the residents of one or more apartment dwellings under common ownership, control or management, and commercial establishments located on the premises of such an apartment house, and (3) any such facility that serves only the residents of an overnight residential business establishment I (e.g. hotel,,motel, etc.) or any comm ercial establishments or private organizations or associations that services only its own employees, members of the general public upon its own premises, or its own members as the case may be. I D. "County" shall mean the body politic of the County of Harnett as heretofore established and constituted by Legislative enactment of the State of North Carolina. E. "Board of Commissioners or Board" shall mean the governing body of the County of Harnett. F. "County Manager" shall mean the chief administrative officer of the County. G. "FCC" shall mean the Federal regulatory agency or agencies having regulatory jurisdiction over cable television. H. "Franchise" shall mean authorization granted pursuant to the terms of this Ordinance to construct, operate, and maintain a cable television system within all, or a specified area, in the unincorporated areas of Harnett County. The Franchise shall be granted in the form of a franchise ordinance (herein also sometimes referred to as "the franchise agreement ") separate and distinct from any license or permit required for the privilege of transacting and carrying on business within the County as required by other ordinances and laws of the County. The franchise ordinance, together with this ordinance, shall contain the terms and conditions upon which any cable television system may be operated in the County. I. "Franchise Agreement" shall mean the ordinance adopted by the Board of Commissioners designating a franchisee for the operation of a cable television system in a designated basic area within the County, and designating the particular terms and provisions thereof, as shall supplement this ordinance to include by incorporation the application for franchise made by the franchisee. -2- J. "Franchisee" shall mean the person, firm or corporation granted a franchise by the Board of Commissioners under this ordinance and their lawful successors or transferees. K. "FCC Regulations" shall mean the present and future valid rules and regulations promulgated by the FCC and applicable to cable television systems in the County. L. "Gross subscriber revenues" shall mean any and all compensation and other consideration in any form received by the franchisee arising from the sale of services offered under the authority of its franchise, provided said term shall not include any sales, service,.rent, occupational or other excise tax to the extent said taxes are charged separately in addition to the regular monthly service and any additional services and are remitted to a taxing authority. M. "Cable office" shall mean the business office of the franchisee which shall be conveniently accessible to the public and located in the franchise area. N. "Person" shall mean any person, firm, partnership, association, corporation, or organization of any kind. 0. "Shall ", "Must" are mandatory, whereas "may" is permissive. P. "Street or Road_' shall mean the surface of and the space above and below any publicly or privately owned or maintained property or any public street, right of way, highway, freeway, bridge, lane, path, alley, court, sidewalk, cartway, drive, existing as such within the franchise area. Q. "Subscriber" or "User" shall mean any person lawfully receiving, for any purpose any service of the franchisee's cable television system. R. "Normal Drop" shall mean the conductor which provides subscriber interconnection to an existing or required Cable Television System feeder leg with a cable length not to exceed 200 feet, including the cable length required within the subscriber's premises, as measured from the nearest street or road right of way line. The term "Normal Drop" as used in this ordinance shall mean a cable television signal cable and appurtenances of such construction, installations and system interconnection as provides signal levels of the quality and strength consistent with the technical quality -3- requirements of the FCC rules. It may be overhead or underground. Drops in excess of the normal length shall be in accordance with the provisions of the line extension policy in this ordinance. S. "Residential Units Per Mile" shall mean the total number of residential units not already passed by energized cable of any franchised CATV system which units are located on the property directly adjacent to two consecutive miles of street or other public rights of way along established streets or rights of way contiguous with the present system of streets and rights of way, the total residential units thus obtained shall be divided by two to obtain the "residential units per mile" count as "8 residential units ". Example: 8 apartments in one building T. "Potential subscribers" shall mean those households, commercial, industrial or institutional establishments within a reasonable distance from the trunk cable where service could be provided to them; said distance shall�,be determined by the standards of the CATV industry in effect at the time the determination is made. U. "Property of Franchisee" shall mean all property owned and installed or used by the franchisee in the operation of a cable television system or service in the county under authority of a franchise granted pursuant to this Ordinance. V. "Extension costs" shall mean one time prorata energizing charges and cable costs, inclusive of direct and indirect overhead so as to reflect the equivalent actual cost of equipment, wire and installation labor above and beyond the cost of a normal drop. W. "CATV" shall mean cable television. X. "Two -Way Capacity" shall mean that such system shall maintain a plant having technical capacity for audio and video return communications; two -way capability is not required to be activated until requested by the Board and then only to the extent required in the franchise granting ordinance. Section 4. FRANCHISE REQUIRED. It shall be unlawful for any person to own, operate, or construct a cable television system in unincorporated areas of the County or to provide cable television service to any subscriber within the County, except pursuant to a franchise agreement granting the right to do so between the County and the Franchisee, which agreement shall incorporate by reference and be subject to this ordinance to the same -4- extent as though this ordinance agreement. Notwithstanding the franchisee may designate others construct, own and lease to the cable television system, provid be fully and solely responsible in its entirety is a part of said provisions of this section, the under contractual arrangement, to franchisee the physical assets of the �d, however, that the franchisee shall under the terms of this Ordinance and the franchise agreement. Neither the franchise, nor any rights of the franchisee arising thereunder shall be assigned, without the prior written consent of the Harnett County Board of Commissioners. Nothing in this section is intended to prevent the Board from granting a pre- existing permitted use franchise to any CATV system in operation in the unincorporated areas of the County at the time of passage of this ordinance under such terms and conditions as will enable that CATV to maintain its then current customers for a sufficient length of time to recoup its investment. Section 5. PROCEDURE FOR GRANTING A FRANCHISE. A. Applications. Applications for construction, operation, and maintenance of CATV systems shall be submitted to the Harnett County Board of Commissioners. B. Hearing. The Board shall have a full and complete public hearing affording all interested parties, including members of the public, the right to be heard. The Board may at the conclusion of the hearing or some subsequent time, grant a franchise to the applicant whose proposed system is in the best interest of the public and the potential subscribers within the area covered by the franchise. C. Authority. The Board may accept applications for an area less than the whole of the unincorporated area within the County. D. Contents of Application. The application, filed by a person seeking issuance of a franchise, shall contain: 1. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner must be submitted. If the applicant is a corporation, the application shall state the names and addresses of its directors, officers, parent and subsidiary companies and of all shareholders owning as much as five percent (58) of the outstanding stock of any class, and shall include a certified copy of its articles of incorporation together with all amendments thereto. The application shall state the names -5- J' and address of all persons whose beneficial interest in the applicant amounts to five percent (5%) or more, regardless of how said interest is held. 2. A statement demonstrating the applicant's experience and expertise, if any, in establishing a cable television system and in providing a CATV service, including the names and locations of any other CATV systems currently or formerly constructed, operated or maintained by the applicant. 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. 4. To the extent permitted by law, a statement containing a description of the CATV system proposed to be constructed, installed, maintained and operated by the applicant, the technical specifications of the materials to be used, the services to be provided to subscribers, the services, material and equipment to be provided without cost to local government units, qualified under the FCC regulations, the facilities, material and equipment to be made available for access cablecasting, the manner in which the applicant proposes to construct, install, maintain and operate the system, and the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system. -6- r The statement required by this subsection shall include a.11 information above, relative to the full term of the franchise and not merely the initial system. 5. A statement setting forth all agreements and understandings, whether written or oral, or implied, existing between the applicant and any person or entity with respect to the ownership, control or transfer of the proposed franchise or the proposed CATV system and service. If a franchise is granted to a person who is an agent or representative of another person, and such relationship is not disclosed in the original application, such franchise shall be void and of no force and effect. 6. A statement or schedule of proposed rates and charges to subscribers for installation and service, and a list of those services to be provided to subscribers. 7. A map of the area which the applicant will agree to serve within twelve months of the effective date of the franchise and a statement of applicant's plans for future expansion of service.. The map shall clearly delineate areas which will not be served, if any. 8. The applicant shall provide to the Board any additional information which the Board deems necessary. A request by the Board for such additional information shall be made in writing after the opening of applications and before the public hearing. E. Reservation of Rights. The County expressly reserves the right or privilege to grant by franchise to any other person the right to construct, operate, and maintain a CATV system within the same area during the same period of time granted to any other.franchisee. F. Findings. If the Board determines that no system proposed by any applicant is in the best interest of the public, no franchise will be granted. The franchise, if granted, shall contain recitations that demonstrate that the Board has examined and approved the franchisee's legal, financial and technical qualifications, as well as the adequacy and feasibility of franchisee's construction arrangements. Section 6. ACCEPTANCE OF FRANCHISE - EFFECTIVE DATE. A. Time. Within sixty (60) days after the Board has granted the franchise, the franchisee shall file with the Clerk to the Board, -7= a iWritten acceptance of the franchise, acknowledged before a Notary Public. This acceptance shall acknowledge that the franchisee agrees to be bound by and to comply with the provisions of this Ordinance, and the assurances set forth in his application, and shall be of such form and of such content, as shall be satisfactory to and be approved by the County Attorney. B. Other Requirements. Concurrently with the filing of the written acceptance, the franchisee shall file with the Clerk to the Board the bond and proofs of insurance as required by Sections 11 C and E or F of this Ordinance and proof of loan commitments or other proof of ability to obtain construction funds. C. Effective Date. The effective date of this franchise shall be the date on which the franchisee files the acceptance, bond, proofs of insurance, and proof of acquisition of construction funds as required herein, provided, however, if any of the material required to be filed with the acceptance or the acceptance itself is defective or fails to meet with approval, the franchise shall not be effective until such defect is cured or such approval is obtained. Section 7. PROVISIONS GOVERNING THE TERM, RENEWAL, RENEGOTIATION, AND TRANSFER OF A FRANCHISE. A. Term. The franchise and rights therein granted shall take effect and be in force for a period of fifteen years from and after the grant and acceptance date of the franchise, unless such time is extended by the Board of Commissioners. B. Termination of Franchise. Upon termination of the franchise for whatever reason, including expiration or revocation, the County shall have the right to determine whether the franchisee shall be eligible to continue to operate and maintain the CATV system. 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 least 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: 1. Technical developments and performances of the system; 2. Programming; 3. Other services offered; 4. Cost of Service; 5. Compliance with any requirement in the ordinance or in FCC regulations; 6. Annual and other reports made to the County or the FCC; 7. Extension of service; and 8. Other matters of concern. 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. D. Revocation of Franchise. The Board of Commissioners may terminated the franchise conferred under this Ordinance at any time prior to a date of expiration upon a finding that the franchisee has failed to cure one or more of the following defects: 1. Material breach, whether by act or omission, of any terms or conditions of this franchise ordinance, or franchise agreement, or 2. Material misrepresentation of fact in the application for or negotiation of the franchise, or 3. Insolvency of the franchisee, or inability or unwillingness of the franchisee to pay its just debts when they accrue, or application of the franchisee for adjudication as a bankrupt, or 4. Failure to provide subscribers or users with adequate service in the best interest of the public convenience and welfare, or M 5. Failure to have obtained authorization from all required governmental agencies and acceptable pole attachment agreements within twelve (12) months after acceptance of the franchise provided the period of twelve (12) months may be extended by the Board of Commissioners if the franchisee is diligently pursuing such authorization and the delay is not caused by any fault of the franchisee or results from strikes, natural disaster, or other occurrences over which the franchisee would have no control. 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. E. Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the system, or upon the termination of any lease covering all or a substantial part of the system, the franchisee shall notify the Board of Commissioners of such fact, and such notification shall be treated as a notification that a transfer in control of the franchise has taken place, and the provisions of -10- Section 7G of this Ordinance governing the consent of the Board of Commissioners to such chance in control of the franchise shall apply. F. Receivership. The Board of Commissioners shall have the right to cancel this franchise one hundred and twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the company, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have vacated prior to the expiration of said one hundred and twenty (120) days, or unless: 1. Within one hundred and twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this Ordinance and remedied all defaults thereunder; and 2. Such receiver or trustee, within said one hundred and twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Ordinance and the certification granted to the company. G. Transfer of Control. No transfer of effective ownership or control of the CATV system may take place, whether by forced or voluntary sale, lease, mortgage, assignment, encumbrance or any other form of disposition, without prior notice to and approval by the Board of Commissioners. The notice shall include full identifying particulars of the proposed transaction, and the Board of Commissioners shall act by resolution. The franchisee shall not issue any additional capital stock and shall not permit the transfer of more than ten (10) percent of its presently outstanding shares without the prior written consent of Board of Comamission=_rs. No sale, lease, assignment or transfer shall be effective until the vendee, leasee, assignee, or transferee has filed with the County its acceptance of this grant. In the absence of extraordinary circumstances, the Board of Commissioners will not approve any such transactions before completion of construction of energized cable passing before each dwelling unit, as specified in Section 8B. Prior approval of the Board of Commissioners shall be required where ownership or control of more than ten (10) percent of -11- the right of control of or interest in the franchise is acquired by a person or a group of persons acting in concert, none of whom already own or control ten (10) percent or more of such right of control or interest, singularly or collectively. Provided, however, that such Board of Commissioners approval shall not be unreasonably withheld after proper application is made therefore. "Transfer of effective ownership of control" shall not include: 1. Pledge or hypotecation or mortgage or similar instrument transferring conditional ownership of all or part of the system's assets to a lender, or creditor in the ordinary course of business so long as the lender does not thereby acquire the right to control the system's operations; but no such transfer of conditional title can be made absolute or become effective without prior approval of the Board of Commissioners, or 2. The disposition of facilities or equipment no longer required in the conduct of business. Franchisee may hypotecate its interest under this Ordinance and the franchise agreement and in the CATV system to be constructed pursuant thereto for the purpose of securing a loan, the entire proceeds of which will be utilized in construction and operation of its CATV system in the franchise area. By its acceptance of the franchise, the franchisee specifically concedes and agrees that any acquisitions or transfers as set forth in this section without prior approval of the Board of Commissioners as may be required, shall constitute a violation of the franchise agreement and this Ordinance by the franchisee. H. Continuing of Service Mandatory. The franchisee shall be required to provide continuous service to all subscribers in return for payment of the established fee. If the franchise agreement becomes void whatever reason including normal expiration, revocation or foreclosure, the franchisee is required, at the option of the County as a part of this franchise to continue to operate the system for either a period of six months or until an orderly change of operation is effected whichever is the earlier. In the event the franchisee fails to operate the system or allows a lapse in service without prior approval of the Board of Commissioners, the County or its agent may operate the system until such time that a new operator -12- is 'selected. If the County is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the County for any costs or damages that are the result of the franchisee's failure to perform. I. Periodic Review. Because of the regulatory, technical, financial, marketing, and legal uncertainties associated with cable communications, the franchisee shall agree to the following review provisions in order to provide for a maximum degree of flexibility in this franchise and to help achieve a continued advance and modern system for the County: 1. The County and the franchisee shall hold scheduled review sessions within thirty (30) days of the fifth and tenth anniversary dates of the effective date of the franchise. 2. Special review sessions may be held in the County Courthouse at any time during the term of the franchise upon reasonable notice by either party to the other. A special review session shall be held in the event any clause or section of this ordinance is voided, nullified deleted or modified by the authority of any regulatory agency including the FCC, and the franchisee will comply with the FCC rules within one (1) year from adoption of the new rule. The following topics shall be discussed at every scheduled review session: service, rate structures, free or discounted services, application of new technologies, state of the art, system performances, services provided, programming offered, customer complaints, privacy in human rights, amendments to this Ordinance, undergrounding provisions, judicial and FCC rulings, and extension of service. In addition, other topics may be discussed as determined by the County. At either a scheduled or special review session a public hearing may be called if and as determined by the Board of Commissioners. Section 8. FRANCHISE AREA AND EXTENSION OF SERVICE. A. Franchise Territory. The franchise is for all of Harnett County outside of the corporate limits of the towns. B. Service. Within the second 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 -13- 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 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 occupied 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. Franchi :=z�e shall pay as its portion of the costs of extension an amount which ; <ould give it the same gross annual yield on investment in the former s`.tuation as it would have_had in the latter situation. The balance 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 s.: ^h extension), said prorata shares shall be recalculated as additional ^ustomers along said extension subscribe to Franchisee's system. ;aid 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. Section 9. REGULATION OF RATES. A. Franchise Fee. (see "Payment to the County ", Section 10.) B. Limitations on Rates. The charges made to subscribers for services of the franchisee hereunder shall be fair and reasonable. The franchisee shall receive no consideration whatsoever from its subscribers other than in accordance with this section, without approval of the Board of Commissioners. The franchisee shall not charge rates for basic services and for installations and disconnections in excess of the rate schedule appearing in the franchisee's application unless approved in accordance with Section 9 C hereof. 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 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 -15- 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. D. Refunds to Subscribers and Users. If any subscriber terminates any monthly service during the first six (6) months of said service because of failure of a franchisee to render the service offered, the franchisee shall refund to such subscriber an amount equal to all charges paid by the subscriber during the period in which no service was received. If any subscriber terminates for any reason any monthly service prior to the end of a prepaid period, a pro rata portion of any prepaid subscriber service fee shall be refunded to the subscriber by the franchisee using number of months as the basis. E. Advance Charges and Deposits. A franchisee may require subscribers to pay the installation charge in advance and to pay for each month of basic service in advance at the beginning of each month. Additionally franchisee may charge deposit fees for converters as set forth in their application but not to exceed franchisee's cost. -16- No other advance payment or deposit of any kind shall be required by a franchisee for basic subscriber service. Other than for a converter, nothing in this provision shall be construed to prohibit charges for initial installation, relocation or reconnection. Franchisee may also sell to consumers converters on terms specified in the application. F. Installation and Reconnection. Except as otherwise provided elsewhere in this ordinance, a franchisee may make a charge to subscribers for the installation of service outlets and for the reconnection of service outlets. The rates for such connection or reconnection shall be as authorized in the rate schedule (Section 9 B) . G. Other Governmental Regulation of Rates. If in the future, the State of North Carolina or the United States Government or any regulatory agency thereof regulates the rates of the franchisee for the service provided for in the franchise; this section shall be of no effect during such regulation to the extent of any conflict therewith. H. Public Service Installation. The franchisee shall without charge for installation, maintenance or service make single installations of its standard CATV service facilities to those public buildings operated by Harnett County and the Harnett County Board of Education when the building is located on the franchisee's system when the system is constructed consistent with the requirements of this ordinance. Such installations shall be made at such reasonable locations as shall be requested by the County Manager. Any charge for relocation of such installation shall, however, be charged at actual cost. Additional installations at the same location may be made at actual cost. No monthly service charges shall be made for distribution of the franchisee's basic service, including access channels, within such publicly owned buildings. I. Charges for Public Access. Charges to users of the franchisee's production facilities for public access programming shall not exceed actual costs incurred. Such charges shall be publicly posted and made available at no cost to anyone upon request. Charges shall be clearly and completely stated in the operating rules for public access programming. Such charges may be amended only upon -17- approval by the Board of Commissioners. Franchisee shall furnish standard playback facilities and labor at actual cost incurred for the public access channel. 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 exclusive of reconnect and relocation service fees and the portion of any pay TV fees paid over to distributors of pay TV programing. 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 the highest rate permitted by law. Nothing in this provision shall limit franchisee's liability to pay other local taxes and charges. Section 11: INSURANCE, PENALTIES, AND ENFORCEMENT. A. Remedies for Breach and Contravention of Franchise. A breach by the franchisee of the franchise agreement, in addition to constituting a breach of contract, shall constitute a violation of this Ordinance. The cost of any litigation incurred by the County to enforce this Ordinance or the franchise granted pursuant hereto, or the franchise agreement or in relation thereto, or in relation to the -18- cancellation or termination of a franchise, shall be reimbursed to the County by the franchisee. Such costs shall include filing fees, costs of depositions, discovery, and expert witnesses, all other expenses of suit, and a reasonable attorney's fee. Violation of material provisions of this Ordinance shall subject the franchisee to the following penalties: 1. Failure of the franchisee to meet performance standards, as determined by the County Manager, to which it has agreed, may result in a rebate of rates or charges to subscribers affected, provided that the County Manager shall provide ten (10) days written notice of the failure to the franchisee. Any rebate may be charged to the performance bond. 2. For failure to provide data and reports as requested by the County Manager or the Board of Commissioners and as required by this Ordinance, the penalty shall be fifty (50) dollars per day for each day not delivered. This penalty may be chargeable to the performance bond. 3. For failure to complete construction and installation of the cable system, unless the Board of Commissioners approves the delay because of reasons beyond the control of the franchisee, the franchise term may be reduced one (1) year for each three (3) months' delay. The County Manager shall notify the franchisee during the first month of the three (3) month period that the system has failed to meet performance standards. 4. For any other material violation of the ordinance in such amounts per day as the Board may reasonably determine. 5. The franchisee may appeal any penalty which it considers unreasonable to the Board of Commissioners and then into the state judicial system as permitted by state law. B. Liability and Indemnification of the County. The franchisee shall indemnify and hold harmless Harnett County at all times during the term of the franchise granted hereby and specifically agrees that it will pay all damages and penalties which the County may legally be required to pay as a result of granting the franchise. Such damages and penalties shall include, but not be limited to, damages arising out of copyright infringements, and other damages arising out of the installation, operation or maintenance of the CATV system authorized -19- herein, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchisee. In case suit shall be filed against the County either independently or jointly with the franchisee to recover for any claim or damages, the franchisee, upon notice of it by the County, shall defend the County against the action and, in the event of a final judgment being obtained against the County, either independently or jointly with the franchisee solely by reason of the acts of the franchisee, the franchisee will pay said judgment and all costs and hold the County harmless therefrom. C. Insurance. The franchisee shall be required to maintain insurance in such forms and in such companies as shall be approved by the County with the County named as the coinsured, such approval not to be unreasonably withheld, to protect the County and franchisee from and against any and all claims, injury or damage to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any aspect of the system. The amount of such insurance shall not be less than the following: General Liability Insurance: bodily injury per person bodily injury per occurrence property damage per occurrence Automobile Insurance: bodily injury per person bodily injury per occurrence property damage per occurrence $ 500,000.00 $1,000,000.00 $ 500,000.00 $ 100,000.00 300,000.00 300,000.00 The County may require the foregoing insurance coverage to be changed from time to time during the term of the franchise. Workmen's Compensation Insurance shall also be provided as required by the laws of the State of North Carolina, as amended. All said insurance coverage shall provide a thirty (30) day notice to the County Manager in the event of material alteration or cancellation of any coverage afforded in said policies prior to the date said material alteration or cancellation shall become effective. A certificate of coverage for all policies required hereunder shall be furnished to and filed with the County Manager, prior to the commencement of operations or expiration of prior policies, as the case may be. -20- D. Non - Waiver. Neither the provisions of this section, nor any bonds accepted by the County pursuant hereto, nor any damage recovered by the County hereunder, shall be construed to excuse unfaithful performance by the franchisee or limit the liability of the franchisee under this ordinance or the franchise for damages, either to the full amount of the bond, or otherwise. 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. -21- F. Deposit in Lieu of Bond. In lieu of the performance bond by a sureby company as herein provided the franchisee may file and deposit with the County a performance bond without a corporate surety but secured by a Certificate of Deposit in some bank or savings and loan association in the State of North Carolina, in the sum of the performance bond required by Section 11 E hereof conditioned in the same manner as the performance bond of a surety company hereinbefore described. The income from such deposit shall be payable to the franchisee. As an alternative the franchisee may provide such other security as may be approved by the Board of Commissioners, but absent such approval it shall provide a bond or deposit in lieu thereof as above provided. Section 12. SYSTEM DESIGN PROVISIONS. A. Emergency Override. The cable system shall include an "Emergency Alert" capability which will permit the Chairman of the Board of Commissioners or his designee to override, by remote control, the video and /or audio of all channels simultaneously programming in the case of public emergencies. The franchisee shall designate a channel which will be used for emergency broadcasts. If franchisee is granted a franchise based upon an unified system with one or more municipalities within the-County only one Emergency override channel will have to be kept available for such an unified system. B. Standby Power. The franchisee shall maintain equipment capable of providing standby powering for headend. The equipment shall be constructed so as to notify automatically the cable office when it is in operation and to revert automatically to the standby mode when the AC power returns. C. System Standards. The franchisee shall install and maintain a cable system which shall be in accordance with the highest and best accepted standards of the industry to the end that subscribers shall receive the best possible service. In addition, the franchisee shall comply with all requirements of all duly constituted regulatory agencies having jurisdiction over cable television or the operator of the cable system. D. State of the Art. The franchisee shall upgrade its facilities, equipment and service so that its system is as advanced as the current state of production technology will allow. The franchisee -22- shall install additional channel capacity as required to keep channel capacity in excess of demand therefor by users. At all times, the cable system shall be no less advanced than any other system of comparable size and age excepting only systems which are experimental, pilot or demonstration. The Board of Commissioners shall order the franchisee to comply with this section in case of specific violations, which it may investigate upon complaint or on its own motion. E. System Carriage. At all times the signal carriage and channel utilization shall conform to the regulations of the FCC, State and other regulatory agencies which are not in conflict therewith. The operator shall provide at least one access channel for each of the following activities: 1. public access; 2. educational access; 3. government access; as each of these channels is defined under FCC regulations. Such channels shall not be required to remain idle if not in use by the public but rather can be used by the franchisee to produce revenue. Except in cases of emergency, governmental units must give ten (10) days notice of intent to use. Section 13. CONSTRUCTION-PROVISIONS - USE OF STREETS AND POLE ATTACHMENTS. A. Construction Schedule. The franchisee shall be diligent in commencing construction after the effective date of the franchise. B. Changes Required by Public Improvement. A franchisee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place to remove from the road or other public place, any property of the franchisee when required by the County or State of North Carolina by reason of traffic conditions, public safety, road vacation, road construction, change or establishment of road grade, installation of sewers, drains and water pipes, power lines, or any other type of structure or improvement by public agencies. 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 -23- form as to be filed with the County Manager. In the event of termination for failure to construct the CATV 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 abatement and upon refusal to comply, franchisee may be cited for contempt. D. Use of Existing Poles or Conduits. Nothing in this Ordinance, or any franchise granted hereunder, shall authorize the franchisee to erect and maintain in the County new poles where existing poles are servicing the area. The franchisee shall obtain permission from the County before erecting any new poles or underground conduit where none exists at the time the franchisee seeks to install his network. E. Facilities Not to be Hazardous or Interfere. All wires, conduits, cable and other property and facilities of the franchisee shall be so located, constructed, installed and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon the roads and public places of the County. The franchisee shall keep and maintain all of its property in good condition, order and repair. The franchisee shall keep accurate maps and records of all its facilities and furnish copies of such maps and records as requested by the County in the section dealing with reports. A franchisee shall not place poles or other equipment where they will interfere with the rights or reasonable convenience of adjoining property owners, or with any gas, electric or telephone fixtures, or with any water hydrants or mains. F. Methods of Installation. All wires, cables, amplifiers and other property shall be constructed and installed in an orderly and -24- woekmanlike manner consistent with all applicable requirements of the National Electric Code, state and local electric codes, and all pole attachment agreements. All cables and wires shall be installed parallel with existing telephone and electric wires whenever possible. Multiple cable configurations shall be arranged in parallel and bundled, with due respect for engineering and safety considerations. All installations shall be underground in these areas of the County where electric service is underground at the time of installation. In areas where electric utility facilities are aboveground at the time of installation, the franchisee may install its service aboveground with the understanding that at such time as those facilities are required to be placed underground by the County, the franchisee shall likewise place its services underground without additional cost to the subscribers or the County. It shall be the policy of the County that underground installation, even when not required, is preferable to the placement of additional poles. G. Subscriber's Underground Installation Option. Should any subscriber wish to have underground service in any area normally provided service via overhead (aerial) construction, the subscriber requesting such underground service shall pay all costs attendant to underground construction plus ten (10) percent less the normal costs of such equivalent overhead installation, if such overhead service does not exist to the subscribers' residence. H. Prohibition of Signal Distribution by Others. No equipment, cable or other apparatus shall be connected between the franchisee's CATV system and the subscriber's receiver except as furnished and installed by the franchisee. I. Requests for Removal or Change. The franchisee shall, on the request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given not less than five (5) days advance notice of any move contemplated to arrange for temporary wire changes. -25- J. Construction Standards; Clearance Aboveground.. The franchisee's distribution system in the public roads shall comply with all applicable laws, regulations and ordinances, and all its wires and cables suspended from poles in the roads shall comply with the minimum clearances aboveground required for telephone lines, cables, wires and conduits. K. Maintenance and Alteration of the System After Construction. The Board of Commissioners may require any part or all of the system to be improved or upgraded (including, without limitation, the increasing of channel capacity, the furnishing of improved converters, and the institution of two -way transmissions), if a reasonable need is found thereforeafter a public hearing has been called for that purpose, and may order such improvement or upgrading of the system, to be affected.by the franchisee within a reasonable time thereafter, provided that no such change shall compromise the franchisee's ability to perform satisfactorily its obligations or rights under this Ordinance or the franchise agreement. Section 14. OPERATIONS AND MAINTENANCE PROVISION. A. Consumer Complaint Response. The franchisee shall maintain an office within the County of Harnett that is open during all business hours, has a pub -licly listed telephone number, and is so operated that complaints and requests for repairs or adjustments may be received on a twenty -four (24) hour basis. The franchisee shall have a resident manager and engineer within the County of Harnett and shall have office, marketing and technical staffs professionally trained in the cable communications industry. B. Interruption of Service to Subscribers. When ever it is necessary to interrupt service to subscribers for the purpose of maintenance, alteration, or repair, the franchisee shall make every effort to do so at a time that will cause the least amount of subscriber inconvenience and, unless the interruption is unforseen and immediately necessary, the franchisee shall give reasonable advance notice thereof to the affected subscribers. C. Service Force Required. The franchisee shall provide a service force'seven (7) days a week for all complaints and requests for adjustments. Such force shall be capable of responding to subscriber complaints within twenty -four (24) hours of receipt of the -26- complaint. Total loss of service attributable to the cable system shall be cleared within twenty -four (24) ours, except to the extent that restoration of service is prevented by strikes, fires, injunction or other cause beyond the franchisee's control. D. Complaint Log. The franchisee shall keep an accurate log listing chronologically all complaints and trouble calls received from its subscribers. This log shall include appropriate identification of the subscriber and service affected, the time, date and nature of the report, the action taken to clear the trouble or satisfy the complaint, and the date and time of final disposition. This log shall be kept on file for five (5) years and shall be available for inspection by the County Manager upon request at any time within this period. Franchisee shall submit to the County each month a summary of the number and types of complaints received. E. Complaints Regarding Service Deficiencies. For recurrent complaints regarding service deficiencies other than total or partial loss of service, such as "ghosting ", weak audio signal, distortion, and the like, the County Manager may require the franchisee to investigate and report to him the causes and cures thereof, and the County Manager may also conduct his own investigation. Thereafter, the Cunty Manager may order specified remedial action to be taken within reasonably feasible time limits. If such action is not taken, or is ineffective, or if within thirty .(30) days the franchisee files with the Board of Commissioners a notice of objection to the order, The Board of Commissioners may conduct a hearing and may, if the evidence warrants a finding of fault on the part of the franchisee, take appropriate action pursuant to the terms of this Ordinance. F. Complaint Review Procedures. A franchisee shall ensure that all subscribers, programmers and members of the general public have recourse to a satisfactory hearing of any complaint. The County shall work closely with a franchisee and members of the public to establish procedures for handling and settling complaints. A franchisee shall present to the Board of Commissioners for its approval, no later than six (6) months after the acceptance of the franchise, a set of rules,. regulations and procedures reasonably designed for the prompt handling and settling of complaints. -27- G. Sale and Service of Receivers Prohibited. The - franchisee shall not engage in the sale, service, repair, rental or leasing of television receivers, radio receivers, parts of accessories, and shall not required or attempt to influence its subscribers to deal with any particular person in regard thereto. Further, the franchisee shall not require the removal nor offer to remove any existing antenna as a condition of providing cable service. H. Use of Production Equipment. A user of cablecast facilities may not be required to use the franchisee's production equipment but must be allowed to use any other production equipment that is compatible with the franchisee's facilities. The franchisee is encouraged to use standard quality equipment. I. Open Books and Records. The franchisee shall keep complete and accurate books of accounts and records of its business under and in connection with its franchise. All such books and records shall be maintained at the franchisee's business office within the County. The County shall have access to all such books and records at any time during reasonable business hours, and may examine officers and employees informally or under oath in respect thereto. Access shall also be given to the County, on request, to all supplementary or underlying financial and engineering records and reports. J. Current Reports. The following reports must be filed with the County Manager when the specified event occurs: 1. Any instrument of change in or transfer of an interest in the franchisee or its assets or franchise. 2. Any charge in or addition to the directors or officers of the franchisee. 3. Any contract or transaction with an affiliated company, respecting the cable system, together with full particulars and a copy of any written agreement or a written summary of any verbal agreement. 4. Any changes in the franchisee's rules and regulations governing the conduct of its business. K. Permits and Authorizations. The franchisee shall diligently apply for all necessary permits, agreements, authorizations and contracts required in the conduct of its business and shall diligently pursue the acquisition thereof, including necessary pole attachment contracts and necessary authorizations from the Federal Aviation :210 Administration to construct such receiving antenna towers as may be required and any necessary authorization or waivers form the FCC, and when any such permit is obtained, a copy thereof shall be promptly filed by the franchisee with the County Manager. L. Filings and Communications with Regulatory Agencies. Copies of all communications, including petitions, applications, pleadings and reports, as well as official correspondence sent to or received from the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting CATV operations authorized pursuant to this franchise, shall also be submitted simultaneously to the County Manager. M. Quarterly Reports. The franchisee shall file with the County Manager on a quarterly basis construction reports until the system is completed. 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. -29- 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. O. General Reports. A franchisee shall prepare and furnish to the County, at the times and in the form prescribed by the County Manager or Board of Commissioners, such reports with respect to its operation, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the functions of the County in connection with this Ordinance. Section 15. RIGHTS RESERVED TO THE COUNTY. A. Right to Inspect Records. The County shall have the right to inspect all books and records and examine officers and employees as specified in Section 14.1, of this Ordinance. B. Right to Inspect Construction. The County reserves the right, but shall not have the duty to inspect plans and construction of any facility to be used in connection with the cable system irrespective of its location. C. Right of Intervention. The franchisee shall not oppose intervention by the County in any suit or proceeding to which the franchisee is a party. D. Right to Require Removal of Property. The County reserves the right not inconsistent with any other provision of this ordinance to require the franchisee to remove any of its property from publicly owned property at franchisee's own expense. Section 16. RIGHTS RESERVED TO THE FRANCHISEE. Franchisee's Right to Appeal. Franchisee shall have the right to appeal any provision, requirement or ruling of the County Manager to the Board of Commissioners and to the courts as permitted by state law. A. Sale of Subscriber Lists Prohibited. Franchisee shall be prohibited from using or allowing the use of subscriber lists for any purpose unconnected with the provision of service over the system. B. Monitoring. No monitoring of any terminal connected to the system shall take place without specific written authorization by the -30- dser.of the terminal in question on each occasion. Provided, however, the franchisee may provide for systemwide, nonindividually addressed "sweeps ", or the franchisee's acquisition of information for purposes of verifying system integrity, controlling return path transmissions, billing for pay services. C. Cable Tapping. It shall be unlawful to tape or monitor a system line without authorization from the parties whose communication might be overheard. Provided, however, the franchisee may provide for systemwide, non - individually addressed "sweeps ", or the franchisee's acquisition of information for purposes of verifying system integrity, controlling return path transmissions, or billing for pay services. D. Discriminatory or Preferential Practices Prohibited. The franchisee shall not, in its rates or charges, or in making available the services or facilities of its system, or in its rules or regulations, or in any other respect, make or grant preferences or advantages to any subscriber or potential subscriber to the system, or to any user or potential user of the system, and shall not subject any such persons to any prejudice or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the system or other legitimate uses thereof; nor shall it be deemed to prohibit the establishment of a graduated scale of charges, and classified rate schedules to which any customer coming within such classification shall be entitled. E. Open Access. The entire system of the franchisee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios, and other services to all citizens, businesses, public agencies, or other entities having a legitimate use for the system and no one shall be arbitrarily excluded from its use. Allocation of use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same, and where such rules or decisions are not effective to resolve a dispute between conflicting users or potential users, the matter shall be submitted for resolution the the County Manager, subject to appeal to the Board of Commissioners. F. Equal Opportunity Employment and Affirmative Action. In the carrying out of the construction, maintenance and operation of the -31- ` CATV system, the franchisee shall not discriminate against any employee or. applicant for employment because of race, creed, color, marital status, age, sex or national origin. The franchisee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non - discrimination clause. The franchisee shall in all solicitations or advertisements for employees placed by or on behalf of the franchisee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, marital status, age or national origin. G. Individual Right of Appeal. Any affected individual, partnership or corporation shall have the right to appeal any provision, requirement or ruling of the County Manager to the Board of Commissioners. Section 18. MISCELLANEOUS PROVISIONS. A. Compliance with Laws. Franchisee agrees to comply fully with all local ordinances, state and federal laws, and with all rules issued by all regulatory agencies now or hereafter in existence. B. Severability. If any section, sentence, clause or phase of the Ordinance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect, the validity of the remainder of this Ordinance, and any portions in conflict are hereby repealed. Provided, however, that in the event that the FCC declares any section invalid, then such section or sections will be renegotiated by the County and the Franchisee. C. Captions. The captions to sections are inserted solely for information and shall not affect the meaning or interpretation of the Ordinance. D. No Recourse Against the County. The franchisee shall have no recourse whatsoever against the County or its officers, boards, commissions, agents, or employees for any loss, cost, expense or damage arising out of any provision or requirement of this franchise or because of its enforcement. E. Non- Enforcement. The franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of the franchise by any failure of the County to enforce prompt compliance. - 32 - % ,Section 19. REGULATORY ENTITY. Regulation: The Board of Commissioners reserves the option to designate a regulatory commission to promote and develop access to the CATV system. Membership, term and functions of that commission shall be established by resolution when the Board of Commissioners chooses to exercise the option. In the absence of a regulatory commission, the Board of Commissioners requires of the County Manager performance of the following functions: 1. Advise the Board of Commissioners on application for franchises, unless the Board of Commissioners shall otherwise provide for the handling of this function; 2. Advise the Board of Commissioners on matters which might constitute grounds for revocation of the franchise in accordance with this Ordinance; 3. Resolve disagreements among franchisees, subscribers and public and private users of the system; such decisions of the County Manager shall be appealable to the Board of Commissioners; 4. Advise the Board of Commissioners on the regulation of rates in accordance with this Ordinance. The said advisory function shall be in the form of a written report to the Board of Commissioners, which shall include recommendations to the Board of Commissioners and the facts upon which the said recommendations are based; 5. Coordinate franchisee and County activities for the best use of public facilities and channels of the system; 6. Advise the Board of Commissioners regarding general policy relating to the services provided subscribers and the operation and use of public channels, with a view to maximizing the diversity of programs and services to subscribers. The use of public channels shall be allocated on a first come, first served basis, subject to limitations on monopolization of system time or prime time; 7. Required an audit of all franchisee records required by this Ordinance and, in his discretion, require the preparation and filing of information additional to that required herein. 8. Make an annual report to the Board of Commissioners, including: an account of franchise fees received and distributed, the total number of hours of utilization of public channels, and hourly -33- 't•s8r)totals for various programming categories, and a review of any plans submitted during the year by franchisee(s) for development of new services. 9. Conduct evaluations of the system at least every five (5) years with the franchisee, and pursuant thereto, make recommendations to the Board of Commissioners for amendments to this Ordinance of the franchise agreement. 10. The County reserves the right to amend this Ordinance from time to time as it shall deem to be in the public interest. Section 20. FRANCHISEE APPLICATION. Requests for Proposals: The Board of Commissioners may, by advertisement or any other means, solicit and call for applications for CATV system franchises, and may determine and fix any date upon or after which the same shall be received by the County, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms conditions or limitations respecting the soliciting, calling for, making and receiving of such applications. Section 21. EFFECTIVE DATE. This Ordinance shall become effective upon its adoption. Adopted June 1, 1981 Amended September 8, 1981 Amended October 18, 1982 -34-