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
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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
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(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.
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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.
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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
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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
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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
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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.
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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,
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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
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` 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.
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% ,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
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'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
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