HomeMy WebLinkAboutORD 93-38 - Cable Operatorsr
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WHEREAS, the Cable Television Consumer Protection and Competition Act of 1992,
Public Law No. 102-385 ("Cable Act of 1992") became law on October 5, 19920 and
WHEREAS, the Cable Act of 1992 provides that municipalities may regulate the rates
charged by cable operators for the basic service tier and related equipment charges to
subscribers within the corporate limits of the municipality if the operator is not subject to
effective competition; and
WHEREAS, the City of Georgetown, in accordance with the Cable Act of 1992 and
regulations adopted thereunder by the Federal Communications Commission (the "FCC'),
filed the appropriate documents with the FCC to obtain certification to regulate the basic
service tier rates and related equipment and installation charges of all cable operators within
the City; and
WHEREAS, in order to be able to regulate the basic service tier rates and related
equipment and installation charges, it is necessary for the City to adopt the following
regulations in conformance with the regulations of the FCC; and
WHEREAS, it is the intent of the City to regulate all multi -channel service providers,
including cable TV operators within the City to the full extent authorized by the Cable Act of
1992; and
WHEREAS, the City Council recognizes that technological changes may allow
multiple channel television to be provided by a means other then cable; and
WHEREAS, the City Council finds that the health, safety and welfare of the citizens
of Georgetown require that a comprehensive ordinance be adopted which establishes a
regulatory framework applicable to the provision of all multi -channel service providers,
including cable operators;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF GEORGETOWN, TEXAS, THAT:
SECTION 1. The facts and recitations contained in the preamble of this ordinance are
hereby found and declared to be true and correct, and are incorporated by reference herein
and expressly made a part hereof, as if copied verbatim. The City Council hereby finds that
this ordinance implements Utilities/Energy Policy b of the Century Plan - Policy Plan
Element, which states: "The City will monitor the development of franchised utilities that
provide adequate services for all citizens", and further finds that the enactment of this
ordinance is not inconsistent or in conflict with any other Century Plan Policies, as required
by Section 2.03 of the Administrative Chapter of the Policy Plan.
SECTION 2. The attached Exhibit "A", relating to Multi -channel Service Regulations,
is hereby adopted by the City Council of the City of Georgetown, Texas, and incorporated
herein for all purposes.
SECTION 3. All ordinances and resolutions, or parts of ordinances and resolutions, in
conflict with this Ordinance are hereby repealed, and are no longer of any force and effect.
SECTION 4. If any provision of this ordinance or application thereof to any person or
circumstance, shall be held invalid, such invalidity shall not affect the other provisions, or
application thereof; of this ordinance which can be given effect without the invalid provision
or application, and to this end the provisions of this ordinance are hereby declared to be
severable.
SECTION 5. The Mayor is hereby authorized to sign this ordinance and the City
Secretary to attest. This ordinance shall become effective upon second reading by the City
Council..
ATTEST.
Elizabeth Gray
City Secretary
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Marianne Landers Banks
City Attorney
Itys LEO i''
Mayor
13.30.010 DE TIONS........................................... 1
13.30.020 PURPOSE AND APPLICABILITY ............................ 10
A. Statement of Intent ....................................... 10
B. Administration, Delegation of Powers and Authority ................ 12
Co Severability. ............................................. 12
D. Governing Law; Venue .................................... 12
E. Compliance with Open Meetings Act ........................... 12
F. Applicability of this Ordinance to an MCS Provider ................. 12
G. Exemption from this Ordinance for Certain MCS Providers,........... 13
II. Non -Exempt MCS Providers Seeking Relief From This Ordinance ...... 13
I. Failure of the Council to Enforce this Ordinance. 15
L Resolution of Inconsistencies with Federal or State Rules, Regulations
orLaws ................................................ 15
K. Resolution of Conflicts Between this Ordinance and an Existing
Franchise Agreement ..................................... 15
L. Civil Penalties .......................................... 15
. The Council's Retained Rights and Authorities .................... 16
N. Alternative User Charge. ................................... 17
O. Franchise Required; Exception. . a * 0 a a a 0 * a a 0 0 a a a a a I a 0 a a I I I a a a 18
P. Change in Franchise Status .................................. 19
Q* Performance Evaluations. ................................... 22
R. Franchise Fees . .......................................... 22
13,30,030 RATE PROVISIONS .................................... 26
A. Rates for the basic service tier. ............................... 26
B. Rates for equipment and installation used to receive the basic service
tier.................................................. 28
Co Cost accounting and cost allocation requirements. .................. 30
D. Costs of franchise requirements. 32
E. Charges for customer changes. 32
F. Billing ................................................ 33
G. Rate Review. ........................................... 35
13.30.040 REGULATORY PROVISIONS 39
A. Notification of Customers and MCS Providers' Rights and
Responsibilities; General Policy. 39
B. Notice of Customer's and MCS Provider's Rights and Responsibilities
With Respect to the Provision of Multi -Channel Service; Minimum
Contents..............................................1 39
Co Prohibition Against "Negative Option" Promotional Packages .......... 40
D. Special Rules Concerning Sales Solicitations ...................... 41
E. Special Rules for Menu -Driven Systems, Service Clusters, and
Packaging of Service Tiers .................................. 42
F. Customer service responsibilities. 43
G. Disconnection. .......................................... 52
He Protection of Subscriber Privacy. . a a a a 0 0 0 0 9 0 4 0 a 0 0 a 0 a 0 0 a 0 a e 0 a 0 a 55
I. Continuity of Multi -Channel Service Provisions. .................. a 55
J. Continued Use of Individual Antennas Protected. a 0 0 a 0 0 0 57
K. Construction of Good Quality. 57
L. Conditions on Use of Streets and Public Ways. . 0 a 0 0 0 a a a 57
M. Franchised MCS Provider's Duty to Remove Franchised Properties from
the Public Streets. ....................................... 1 58
N. Construction Standards. .................................... 59
O. Permits and Licenses. ..................................... 60
P. Safety & Emergency Provisions. .............................. 60
13.30.050 ADDITIONAL PROVISIONS 64
A. Liability Insurance. ....................................... 64
Be Books and Records, 64
Co Furnishing of Reports. ..................................... 66
D. The Council's Policy with Respect to Reports and Records. ........... 66
E. Specific Additional Public, Educational, and Governmental Rules for
MCS Providers Classified as Cable Operators ..................... 67
F. The Council's Objective as it Relates to the Provision of Broad
Categories of Video Programming ............................. 67
G. Tampering and Unauthorized Reception of Certain Services. 68
He Notices. ............................................... 68
Exhibit "A"
"Multi -Channel Service Regulations"
Unless otherwise apparent, the following definitions shall apply in this ordinance:
'AB switch or Input selector switch" means any device that enables a viewer to
select between any video source (including any type multi -channel service) or any
ancillary equipment. Such a device may be more sophisticated than a mere two-sided
switch, may utilize other multi -channel system interface equipment, and may be built
into television receivers.
'Access channel" means a
government,
education,
or
public channel which is carried
on a multi -channel system,
but which is
a part of
any
institutional network.
'Activated channel" has the same meaning as defined by Federal or State law if such a
definition is permitted.
'Abandoned calls" mean telephone calls that are connected to an MCS provider's
general information number, but the caller hangs up without being attended by a
representative of the MCS provider, or by a device capable of problem resolution.
'Alternative user charge" means a charge used in place of a franchise fee that the
Council requires as payment for the privilege of using the streets, easements, public
ways, or rights -of -way of the City in order to construct, maintain, and operate a multi-
channel system. An alternative user charge is not based on an MCS provider's gross
annual revenue (as is the case in a franchise fee), but rather is based on the value of
the City property that an MCS provider is using to construct, maintain, and operate its
multi -channel system.
'Annual gross revenues" means any and all compensation in whatever form (except as
exempted by this definition)which is derived from
(a) the operation of the MCS system, and which is attributable to the subscribers
or customers within the City;
(b) all multi -channel services, MCS operations, and MCS-related activities within
the City including, but not limited to: revenues from subscriber rates; bulk
billing rates; menu -driven cable; pay -per -view events or channels; premium
channels; service tiers; service clusters; institutional networks; advertising;
installations; rebates or commissions received from travel or home shopping
services; informercial channels; or commercial access;
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(c) Unless prohibited or pre-empted by either Federal or State law, all ancillary
multi -channel services, MCS operations, and MCS-related activities within the
City, including, but not limited to: sale of MCS or MCS equipment; revenues
from advertising stuffers inserted into periodic billing statements or other
notices; revenues from 900 numbers or revenues from other interactive cable or
informational services; revenues from personal communications networks
(PCNs); rental or sale of a video discs; rental or sale of video cassettes; rental
or sale of descrambling converters; or other devices; rental or sale of remote
control devices (including those with volume control); rental or sale of AB or
input switches; rental or sale of interactive games or software; rental or sale of
digital radio equipment; sale of satellite antenna -received programming for a
programmer or distributor of services; or from revenues received as the billing
agent, collector, or retailer of satellite antenna/received service.
However, "annual gross revenue": does not mean, any taxes imposed and/or assessed
by law on subscribers (including State sales taxes, but excluding any state or local
franchise fees) which an MCS provider is obligated to collect and pay in full to the
applicable authorities.
'Applicant" means a person submitting an application or proposal to the City for a
license or franchise to operate a multi -channel system under the terms and conditions
set forth in this ordinance, and any State regulations.
"Application or "Proposal" are synonymous for the purposes of this ordinance. An
"application" or "proposal" means the process by which the applicant submits a request
and indicates a desire to be granted a license or franchise for all, or a part, of the City.
An "application" or "proposal" includes all written documentation, and verbal
statements and representations, in whatever form or forum, made by an applicant to
the City concerning the construction, rendering of services, maintenance, or any other
matter pertaining to the proposed multi -channel system.
'Assignment of a franchised MCS provider's franchise" or "Transfer of a franchised
MCS provider's franchise" means any transaction or action which effectively or
actually changes operational or managerial control from one person or entity to
another.
'Auxiliary equipment" means equipment supplied by the MCS provider (such as a
converter, remote control unit, or input selector switch), which enhances or assists in
the reception or provision of multi channel service.
"Basic cable television service" means any service tier which includes the
retransmission of local television broadcast signals.
"Cable Act" or "CCPA" means the Cable Communications Policy Act of 1984, as
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amended.
"Cable channel" or "Cable television channel" means a portion of the electromagnetic
or light frequency spectrum which is capable of delivering a television channel (as
"Television channel" is defined by the FCC regulations).
"Cable operator" means any person or group of persons
(a) who provides cable service over a cable system within the City under a
franchise issued by the City, and who directly or through one or more affiliates
owns a significant interest in such cable system, or
(b) who otherwise controls or is responsible for, through any arrangement, the
management and operation of such a cable system.
"Cable service"
(a) the one-way transmission to subscribers of video programming, or other
programming service; and
(b) subscriber interaction, if any, which is required for the selection of such video
programming service.
"Cable system" means a facility consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed to
provide cable service which includes video, voice or data programming, and which is
provided to multiple subscribers within the City. However, such terms do not include
the following:
(a) a facility that serves only to retransmit the television signals of one (1) or more
broadcast stations; or
(b) a facility that serves only subscribers in one (1) or more multiple unit
dwellings under common ownership, control, or management unless such
facility or facilities use any public right-of-way; or
(c) a facility or a common carrier which is subject, in whole, or in part, to the
provisions of Title II of the Communications Act of 1984, except that such
facility shall be considered a cable system (other than for purposes of Section
621(c) of the CCPA -- codified at 47 USC 541) to the extent such facility is
used in the transmission of video, voice, or data programming or service
directly to subscribers or;
(d) any facilities of any electric utility used solely for operating its electric utility.
"Charge" means a one-time or non -regularly occurring cost paid by the subscriber, and
which is associated with the installation, maintenance, service, or repair of the multi-
channel service. Specifically, a "charge" includes, but is not limited to: disconnection
fees; downgrade charges; costs for closed -captioned devices and equipment, remote
control devices and equipment for hearing -impaired customers; installation charges for
video camera recorders and players; installation charges for digital radio; and trip or
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service call charges.
"City" means the City of Georgetown, Texas.
"Collection charge" means a charge or fee imposed on a customer by an MCS
provider for such provider's efforts at collecting, or attempting to collect, a past due
account.
"Commercially impracticable" means that it is commercially impracticable for such an
MCS provider to comply with a requirement as a result of a change in conditions
which is beyond the control of such an MCS provider, and the non-occurrence of
which, was the basic assumption on which the requirement was based.
"Commission" means The Federal Communications Commission.
"Converter" means any electric, electronic, or other device, separate and apart from the
subscriber's receiver that is capable of converting or changing signals to a frequency
not intended to be susceptible to interference within the television, video, or data
receiver of a subscriber, and by an appropriate channel or other type of selector may
also permit a subscriber to view or otherwise use signals delivered at designated dial
locations, or such other reception and use allocations as may be applicable and
required for the practical use of the signal.
"Council" means the City Council for the City of Georgetown, Texas or its lawful
successor, which is the lawful legislative body for the City.
"Customer" means a subscriber, or user of the services and/or facilities of the multi-
channel system provided by an MCS provider.
"Data Channel" or "Information Channel" means the use of the electro magnetic or
light spectrum for the purpose of transporting data or non video programming.
"Decoder" or "Descrambler" means a device which enables a subscriber to convert a
scrambled signal into a viewable or otherwise useable signal.
"Disaster emergency" or "Disaster" or "Emergency" means an imminent, impending,
or actual natural or humanly induced situation wherein the health, safety, or welfare of
the residents of the City is threatened. A "disaster emergency" (by illustration) may
include a sudden or expected insect infestation (such as with locust or bees),
snowstorm, flood, hail storm, tornado, severe thunderstorm, hazardous waste
infiltration, fire, petroleum, munitions, or nuclear explosion, or aircraft crash.
"Drop" means a small branch of cable, or other transmitting medium which connects
the terminals on the back of the subscriber's receiver to the feeder cable or future
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technical equivalent on the street, easement, rights -of -way, or public way.
"Easement" means and shall include any public easement or other compatible use
created by dedication, or by other means, to the City for public utility purposes or any
other purpose whatsoever, including cable television, or any multi channel service.
"Easement" shall include a private easement used for the provision of cable service or
any other multi -channel service.
"FCC" or "Federal Communications Commission" means the Federal administrative
agency, or lawful successor, authorized to oversee cable television and other multi-
channel regulation on a national level.
"Fiber cable" or "Fiber optic cable" means very thin and pliable cylinders, or strands
of glass or plastic, or any future developed technical equivalent, used to carry wide
bands of multiple frequencies.
"Franchise" means the initial authorization, or subsequent renewal granted by the
Council in order for a person to construct, operate, and maintain a franchised MCS
system in all, or part, of the City.
"Franchised MCS provider" means a person that is awarded a franchise by the Council
to construct and operate a franchised multi -channel system, within all, or part, of the
City. The term "franchised MCS provider" specifically includes the term "cable
operator".
"Franchise
expiration" means the date
of expiration, or
the end of the term of a
franchised
MCS provider,
as provided
under a franchise
agreement.
"Franchise fee" means a fee or charge that the City requires as payment for the
privilege of using the streets, rights -of -way, public ways, and easements of the City in
order to construct, maintain, and operate a franchised MCS system.
"Headend" means the electronic control center, where incoming signals, including
those of television broadcast stations are amplified, modulated, filtered, converted, or
in any way processed or converted for redistribution to subscribers.
"Hub" means the satellite or remote receiving, processing and/or transmitting facility,
enabling the signal to be extended beyond the physical/electronic capabilities of the
multi -channel electronics and/or to serve as a remote switching facility.
"Late charge" means a charge which is added to a subscriber's account or bill for non-
payment of a previously due and delinquent account.
"Mayor" means the Mayor for the City of Georgetown, Texas
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"MCS" means multi -channel service.
"MCS provider" or "Multi -channel service provider" means any person or group of
persons who:
(a) provides multi -channel communications service over a multi -channel system
directly or indirectly owns a significant interest in such multi -channel system;
or
(b) who otherwise controls or is responsible through any arrangement, for the
management and operation of such a multi -channel system.
The term "MCS provider" or "multi -channel service provider" specifically includes the
terms "cable operator", "MDS provider" or "multi -point distribution system provider",
"MDS provider", "personal communications network system provider" (PCN
provider) (where applicable), and "SMATV operator."
"MDS" means multi -point distribution system.
"MDS provider" or "Multi point distribution system provider" (MUDS provider) means
any person or group of persons who is authorized by the FCC, within frequency
boundaries established by the FCC, to transmit specialized multi -channel programming
or data or facsimile transmission to subscriber -selected locations.
"Menu -driven" or "menu -driven cable" or "menu -driven programiservice" means the
process whereby the MCS provider offers multi -channel services via the multi -channel
system in a format that allows the subscriber to select and be charged for multi-
channel services on either a per channel, per program, or per event basis. Menu -
driven cable allows the subscriber to create his or her own service tier(s) or cluster(s),
and the opportunity to change the composition of his or her tier(s) or cluster(s) on a
periodic basis.
"Multi -channel programming service" or "Multi -channel service" means:
(a) the one-way transmission to subscribers of video programming, or other
programming service; and
(b) subscriber interaction, if any, which is required for the selection of such video
programming or other programming service.
"Multi -channel system" means
(a) facility consisting of a set of closed transmission paths and associated signal
generation, reception, and control equipment; or
(b) a facility consisting of infra -red transmission or point-to-point transmission (as
permitted by law); or
(c) an functional equivalent - - that is designed to provide multi -channel service
which includes video voice or data programming and which is provided to
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multiple subscriber within the City.
However, such term does not include the following:
(a) a facility that services only to retransmit the television signals of one (1) or
more broadcast stations; or
(b) a facility that serves only subscribers and one (1) or more multi -unit dwellings
under common ownership, control, or management unless such facility or
facilities uses any public rights -of -way, or
(c) a facility or common carrier which is subject, in whole, or in part, to the
provision of Title II of the Communication Act of 1984 except that such
facility shall be considered a multi -channel system (other than for purposes of
Section 621 (c) of the CCPA - - codified at 47 USC 541) to the extent such
facility is used in the transmission of video, voice, or data programming or
service directly to subscriber or;
(d) any facilities of any electric utility used solely for operating its electric utility.
"Ordinance" means the Multi -Channel Service Providers Regulatory Ordinance for the
City of Georgetown, Texas.
"Other programming service" means information that an MCS provider (specifically
including a cable operator) makes available to all subscribers generally.
"Pay -per -view" or "Premium channel" means the delivery over the multi -channel
system of audio and/or video signals in an unintelligible form to subscribers for a fee
or charge (over and above the charge for standard or basic service) on a per program,
or per channel basis where said unintelligible or unusable form for viewing is made
intelligible only to subscribers paying a separate fee or charge for the viewing or use
of the signals.
"Person" means any individual, corporation, business trust, estate, trust, partnership,
association of two (2) or more persons having a joint common interest, governmental
agency, or other legal entity, including the City.
"Private communications network", or "PCN", or "Private communications system"
means any ancillary or aligned component of an MCS provider's system consisting of
communications lines, cables, equipment or facilities which are used to provide
telecommunications service that in any manner uses or occupies the streets, easements,
public ways, or rights -of -way within the City(as annexed). However, "private
communications network does not include any part of a State or FCC licensed local
government local exchange telephone company, or any part of a Federal , State,
County, or local government owned telecommunications system.
"Proposed abandonment of multi -channel service" or "Proposed withdrawal of multi-
channel service" or "Proposed cessation of multi -channel service" means the
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anticipated, contemplated, imminent, or expected (either voluntary or involuntary)
disruption, discontinuance, desertion, or removal of an MCS provider's operation and
provision of multi -channel service from all, or part, of the City.
"Public, educational or governmental access facilities" means.
(a) Channel capacity designated exclusively for public, educational or
governmental use; and
(b) facilities and equipment for the use of such channel capacity.
"Rate" means the periodic price paid for the receipt of any multi -channel service
provided by an MCS provider.
"Revocation," "Termination," or "Non -renewal," means an official act by the City
whereby the Council removes, repeals, or rescinds previously approved authorization
for a licensed or franchised MCS provider to conduct the running of a multi -channel
system within the City.
"Service cluster" means the grouping, aligning, or packaging of one (1) or more multi-
channel programming services by category (such as sports and/or news), or by rate, or
by some other identifiable method, and charging a separate price or rate for each
service cluster.
"Service outage" for purposes of credit means the loss of picture or sound on all basic
subscriber channels, or one (1) or more auxiliary programming channels (including
tiers and clusters). For purposes of response to a service call a "service outage" means
a loss of a picture or sound or other informational service provided by an MCS
provider. Both of these situation assumes the outage is not caused by the failure or
malfunction of a subscriber's television receiver or by the error misfeasance or
malfeasance of the subscriber.
"Service tier" means a category of multi -channel service or other programming service
provided by an MCS provider, and for which a separate rate is charged by an MCS
provider.
"SMATV" means Satellite Master Antenna Television.
"SMATV operator" or "Satellite Master Antenna Television Operator" means any
person or group of persons who:
(a) provides multi -channel service over an SMATV system; or
(b) otherwise controls or is responsible for, through any arrangement, the
management of an SMATV system.
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"S ATV system" means a private multi -channel system not crossing any public rights -
of -way and which is located on private property, and serving private dwellings.
"State" means the State of 'Texas.
"Street" or "Public Way" means the surface of, and the space above and below a
public street, road, highway, freeway, land, path, public way or place, alley, court,
boulevard, parkway, drive, or other easement now or hereafter held by the City
(including any street, as defined, which is acquired by eminent domain) for the
purpose of public travel and shall include other easements or rights -of -way now or
hereafter held by the City (including any easements or rights -of -way acquired by
eminent domain) which shall, with their proper use and meaning, entitle the City and
MCS provider to use thereof for the purpose of installing or transmitting multi -channel
system transmissions over poles, wires, cable, conductors, ducts, conduits, viaducts,
manholes, amplifiers, appliances, attachments, and other property as may ordinarily be
necessary and pertinent to a multi -channel system.
"Subscriber" means a person lawfully receiving multi -channel service delivered by the
MCS provider.
"USC" means United States Code.
"User" means a person or organization utilizing a multi -channel system and/or its
equipment for purposes of production and/or transmission of material, as contrasted
with receipt thereof in a subscriber capacity.
"Video programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
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13.30.020 PURPOSE PLIC ILI
A. Statement of Intent.
(1) The Council recognizes the United States Congress' intent in approving the CCPA
(expressed in Section 601 -- codified at 47 USC 521). As such, the Council reaffirms
and adopts those principles and ideals as part of the City's intent with respect to cable
television and expands its intent (where applicable) to cover all MCS providers.
(2) As expressed by Congress, and adopted by the Council, its intent is as follows:
(a) establish a local policy concerning communications and technologies,
(b) establish franchise procedures and standards which encourage the growth and
development of cable systems which assure that cable systems are responsive
to the needs and interests of the City;
(c) establish guidelines for the exercise of local authority with respect to the
regulation of cable systems;
(d) assure that cable communications provide, and are encouraged to provide, the
widest diversity of information and services to the public;
(e) establish an orderly process for franchise renewal which protects MCS
providers against unfair denials of renewal where an operator's past
performance and proposal for future performance meet the standards set by the
CCPA, and this ordinance; and
(f) promote competition in cable communications and minimize unnecessary
regulation that would impose an undue economic burden on cable systems.
(3) In addition to principles and ideals listed in Paragraph (2), the Council also expresses
that its intent covers the following:
(a) to create a set of regulations, standards, and procedures for MCS providers;
(b) to create a comprehensive customer service and consumer protecting policy for
MCS providers;
(c) to provide for access and inspection of an MCS provider's books and records
in order to monitor compliance of local, State, and Federal laws, and any
franchise agreement (if one has been granted);
(d) to create a thorough construction and installation policy for an MCS provider's
system;
(e) to provide for the health, safety, and welfare of the citizens of the City in the
provision of MCS;
(f) to provide for emergency override capability, so that citizens of the City may
be warned of a potential, imminent, actual disaster or emergency situation that
exists in the area;
(g) to provide for the introduction and installation of safety alert technology in
order to notify both subscribers and non -subscribers of imminent disaster
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emergencies;
(h) to create a thorough procedure for collecting and monitoring franchise fees ad
alternative user charges;
(i) to create a viable alternative to franchise fees in case such fees, or their
collection, are ruled invalid, unenforceable, or unconstitutional,
(j) to create a thorough default and revocation procedure for licensed and
franchised MCS providers;
(k) to provide for continuity of services in the event of City acquisition,
abandonment, withdrawal, cessation of service, revocation, termination, non -
renewal, or expiration of an MCS provider;
(1) to create a performance review procedure in order to assist the City in its
periodic evaluation of a franchised MCS provider's performance; and
(m) to create procedures for: the evaluation and grant of MCS provider applications
for authorization; the identification of multi -channel service related to
community needs; and the establishment and enforcement of rules and
regulations of MCS providers consistent with the identified needs of the
community.
(4) Further, the Council recognizes that with respect to MCS providers, the Council's
power to adopt regulations is, in part, authorized under the Cable Act, as well as the
Council's police powers, due to the potential for physical scarcity and public
disruption when cable either occupies or uses the public rights -of -way.
(5) The Council recognizes that under Section 624 of the CCPA (codified at 47 USC
544), the legal power of local government is severely restricted in requiring and/or
demanding that particular video programming or other services be provided to
subscribers over the multi -channel system.
(6) Nevertheless, the Council recognizes that it should strive to ensure that its citizens
receive the widest, and most diverse selection of video programming possible.
Consequently, for those MCS providers required to maintain a franchise, the Council
states as its objective to such franchised MCS providers, that the provision of video
programming to subscribers should include the following broad categories:
(a) local broadcast stations;
(b) two (2) distant carriage signals, or satellite -fed broadcast stations;
(c) PEG programming on the lowest offered and/or available tier;
(d) sports programming services (regional and/or national);
(e) news, information, or public affairs/interest programming services;
(f) financial/consumer-oriented programming services;
(g) scientific and/or cultural programming services;
(h) children's programming services; and
(i) ethnically sensitive programming services.
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IWF AdITIM*lstratione. Delegation of Powers and Authority.
{1) The Council is hereby designated as the officer of the City which is responsible for
the continuing administration of this ordinance.
(2) Unless prohibited by federal or State law, the Council may delegate its powers and
authorities with respect to administering either an MCS provider or a franchise
agreement, to a duly authorized representative of the City; in accordance with the City
Charter.
(3) however, the Council may never delegate its franchising or revocation power to
another person.
If any Section, sentence, or clause of this ordinance is for any reason held to be
illegal, ultra vires, or unconstitutional, such invalidity shall not affect the validity of
the remaining portions of this ordinance.
Do Governingn
This ordinance shall be construed under and in accordance with the laws of the State
of Texas and the City Charter of the City of Georgetown. All obligations of the
parties hereunder are performable in Williamson County, Texas. Accordingly, in the
event that any proceeding is brought to enforce the terms of this ordinance, the same
shall be brought in Williamson County, Texas.
It is hereby officially found and determined that the meeting at which this ordinance is
passed is open to the public as required by law and that public notice of the time,
place, and purpose of said meeting was given as required by law.
(1) Unless exempted entirely from this ordinance, or exempted under one (1) or more
provisions of this ordinance, or granted relief (by the Council) from one (1) or more
provisions and/or requirements of this ordinance, then this ordinance shall be
applicable to an MCS provider, and this ordinance shall have full effect and be
enforceable in its entirety. Moreover, a non-exempt MCS provider shall be expected to
be in full compliance with the regulatory provisions of this ordinance no later than
nine (9) months after this ordinance becomes effective, except where a different
compliance date is given or noted (including a different date noted in an applicable
franchise agreement),
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(2) Paragraph (1) is not intended to repeal, and does not have the effect of repealing any
current franchising ordinance that presently exist between the Council and a franchised
MCS provider.
(3) As a result of Paragraph (2) of this Section, the provisions of this ordinance shall have
no effect on an existing franchise ordinance until the expiration of said existing
franchise, or if, prior to the expiration of the franchise, the Council and the affected
MCS provider either execute an amended franchise or renewal franchise in which both
parties agree to be bound by the terms of the ordinance.
, 1 f i- ' 1 t`
(1) Recognizing the inherent technological differences between various types of MCS
providers, and taking into account a number of financial, operational, and
maintenance considerations, the Council exempts certain MCS providers from
complying with the provisions contained in this ordinance.
(2) MCS providers who are exempted from complying with the provisions of this
ordinance are as follows.
(a) an MCS provider who is exempted from this ordinance as a result of an
applicable FCC ruling; or
(b) an MCS provider who is exempted from this ordinance as a result of an
applicable judicial ruling; or
(c) franchised MCS providers who are providing service on the date this Ordinance
becomes effective are exempt from this Ordinance except for the Sections
delineated below. All MCS providers, whether operating before the effective
date of this Ordinance or not, are subject to the following regulations:
(i) Section 13.30020, Subsection P;
(ii) Section 13.30.030, Subsections A-G;
(iii) Section 13.30.040, Subsections C & F(2).
(3) It is expressly understood that an exempted MCS provider remains exempted only as
long as it meets one (1) or more of the specifications of this particular Section.
(4) It also is expressly noted that the extent of the exemption for a qualified MCS
provider is only for this ordinance. Consequently, such an exempted MCS provider is
expected to abide by, and comply with, any other applicable City, State, or Federal
laws and regulations, including any applicable federal, or State consumer protection, or
customer service laws and regulations.
(1) Any MCS provider affected by this Ordinance may file a written petition, at any time,
V
with the Council seeking relief from one (1) or more provisions of this Ordinance. the
relief requested may specifically include the delay in implementation (as to the
petitioning MCS provider only) of one (1) or more provisions of this Ordinance.
(2) In order to receive any relief from one (1) or more of the provisions of this
Ordinance,a non-exempt MCS provider must satisfactorily demonstrate to the Council
that at least one of the following facts exist:
(a) the provision and/or requirement is expressly prohibited by Federal law, the
FCC, or State law; or
(b) where applicable, that the provision in question materially affects, and is in
conflict with an expressed right that is specifically noted in an existing
franchise) - (this provision covers situations where an MCS provider known as
a cable operator seeks, and is granted, modification of an existing franchise
agreement under Section 625 of the CCPA (codified at 47 USC 545)); or
(c) that the imposition of such provisions and/or requirements will create such an
undue economic hardship on an MCS provider so as to imperil or eliminate an
MCS provider's ability to provide multi -channel service to a majority of
current subscribers; or
(d) that one (1) or more time frames listed in this Ordinance are either impractical
to meet in light of the MCS provider's operational policy; or
(e) that the MCS provider has its own construction, maintenance, operation, or
customer service policy, which the council deems comparable to, or exceeding,
any provision and/or requirement from which the MCS provider seeks relief.
(3) The Council shall have the responsibility of determining whether an MCS provider's
construction, maintenance, operation, or customer service policy, is comparable to, or
exceeds, a similar provision in this Ordinance. Note, however, that the Council may
delegate investigative and reporting functions to an authorized representative of the
City,
(4) As an alternative to seeking an exemption, or requesting relief, an MCS provider may
submit a written request of petition for clarification on the precise intent and effect
that one (1) or more provisions or Sections of this Ordinance has on the petitioning
MCS provider.
(5) In accordance with this Ordinance, the Council may charge the petitioning MCS
provider with the actual costs for processing such a petition, including any costs
incurred by outside consultants who are related by the City to review an MCS
provider's petition,
(6) In those instances where the Council grants an exemption or relief to a franchised
MCS provider, or deems a franchise MCS provider's operational policy to be
comparable to an ordinance provision, then the franchise agreement (initial, existing,
IV,
or renewal) shall be amended within thirty (30) days to reflect the exact extent of such
exemption and/or relief. It should be specifically noted that the benefit of such
exemption, relief, clarification, or comparable policy extends only to the MCS provider
granted such exemption, relief, clarification, or comparable policy.
Ii t i' 1 1 1 1In
A non-exempt MCS provider shall not be excused from complying with any of the
requirements of this ordinance, or any subsequently adopted amendments to this
ordinance, by any failure of the Council on any one (1) or more occasions to seek, or
insist upon, compliance with such requirements or provisions.
(1} In any case of an actual inconsistency between any provision or Section of this
ordinance, and any provision or Section of a Federal or State rule, regulation, or law,
then the Federal or State rule, regulation, or law shall not only supersede the effect of
the ordinance, but also control in any local application.
(2) The above Subsection specifically includes any situation wherein an applicable Federal
or State judicial decision creates an actual inconsistency with any provision or Section
of this ordinance. In such a situation, the Federal or State judicial decision shall not
only supersede the effect of the ordinance, but also control in any local application.
I` Resolution of Conflicts Between this Ordinance and an Existing
♦ r
{1) Where there is a conflict (actual or apparent) between this ordinance and an existing
and applicable franchise agreement, the ordinance shall control, and prevail, unless
administratively, or judicially determined invalid, unenforceable, or unconstitutional.
(2) In the case where a franchised MCS provider receives an exemption, relief,
clarification from one (1) or more provisions or Sections of this ordinance, or has one
(1) or more of its policies deemed comparable to a provision contained in this
ordinance, then the franchise agreement should specifically note such exemption,
relief, clarification, or comparable policy, and to the extent that such an exemption,
relief, clarification, or comparable policy is inconsistent with a provision contained in
this ordinance, then the specifically noted exemption, relief, clarification, or
comparable policy language contained in the franchise agreement shall control.
{1} Civil penalties may be imposed for the violation of any provision of this ordinance, as
follows:
M
(a) up to two hundred dollars ($200.00) for each violation, and each day of a
continuing violation may be considered, a new violation; and/or
(b) if applicable, default and revocation of a franchise granted pursuant to this
ordinance, subject however, to the procedural guidelines noted in this
ordinance, and further subject to any limitations imposed by Federal or State
law.
(2) Monetary civil penalties may be imposed in the manner prescribed by either local or
State law.
{1) Subject to pre-emption by, or other approval authority of, the FCC or any other
Federal or State governmental entity or agency, and to the extent permitted by any
applicable law, the Council retains the authority to provide for:
(a) the regulation and control of any multi -channel system within the geographical
limits of City;
(b) the award and grant of an MCS franchise (where required) subsequent to
review of an application or proposal by the Council;
(c) the periodic review and/or amendment or repeal of all, or part, of this
ordinance; and
(d) if mutually agreed to with a franchised MCS provider, the periodic review
and/or amendment of any existing franchise agreement.
(2) The Council, to the extent permitted by Section 623 of the CCPA (codified at 47 USC
543), retains the power to regulate or not to regulate rates or charges associated with
the providing of multi -channel service classified as cable service by an MCS provider
classified as a cable operator.
(3) Subject to pre-emption by, or other approval authority of, the FCC, or any other
Federal or State governmental entity or agency, the Council retains the jurisdiction to
enforce all laws and regulations relating to multi -channel customer service practices
and consumer protection.
(4) If the FCC, Congress, or other governmental agency with authority over cable or any
other MCS provider ever abrogates, deletes, removes, or otherwise disposes of rules or
standards that are referenced in this ordinance, or relied upon by the Council for
purposes of MCS provider compliance with this ordinance, then the Council may, to
the extent not pre-empted by, or inconsistent with, later adopted law or regulations, re-
instate such rules or standards. In such case, the re -instated rules will have the same
weight (as allowed under prevailing law) as they had prior to their initial deletion.
let
(1) This Section is applicable to any licensed, but otherwise authorized MCS provider, and
to any MCS provider who has had its franchise ruled unconstitutional, unenforceable,
or invalid. For all franchised MCS providers the provisions concerning franchise fees
shall be applicable.
(2) Where not specifically prohibited by Federal or State law, and as an alternative to the
imposition of a franchise fee as set forth in this ordinance, the Council may impose,
extract, and collect, a charge from an affected MCS provider for the use by such
provider of the streets, rights -of -way, easements, and public ways of the City.
(3) The alternative user charge shall be based on the following mathematical mode:
(a) determine the present value of all public streets, rights -of -way, easements, and
public ways of the City in which are located multi -channel system facilities and
equipment of the affected MCS provider;
(b) take the average percentage increase in land appraisals within the City (as
determined by the Property Appraiser for the City, for the five preceding years;
(c) take the average percentage increase for the five preceding years and use it to
determine the dollar amount of property value increase for the remaining term
of the franchise (if no franchise applicable, then use five years);
(d) add the present value to the dollar amount of property value increase for the
remaining term of the franchise (if no franchise applicable then use five years);
(e) divide the adjusted value by the remaining number of years on the term of the
franchise (if no franchise applicable then use five years);
(f) multiply that figure by five percent (5%) to arrive at the annual user charge
that is to be collected from the affected MCS provider.
For purposes of illustration only, the formula reads as follows.
present value, _ (plus) dollar amount of property increase for remaining term of the
franchise (based on average percentage increase of land appraisals for past years of
franchise term, divide the adjusted value by the remaining years on the term of the
franchise, multiply that figure by five percent (5%), _ (equals) the annual alternative
user charge.
(4) The Council adopts such an alternative user charge, in order to receive fair
compensation for the affected MCS provider's use of the public streets and public
ways if such compensation cannot be obtained by imposing a flat percentage fee on
such MCS provider's annual gross revenues. However, an affected MCS provider may
agree to an alternative charge that is based on a flat percentage of gross revenues, as
long as that charge does not exceed five percent (5%) of an affected MCS provider's
annual gross revenues.
M
(5) Also, recognizing that an alternative user charge may affect a franchised MCS
provider, please note, that the franchise agreement may contain express language
which details a different method or manner to handle a situation in which franchise
fees as historically calculated (as a percentage of gross revenues) are ruled
unconstitutional, or unenforceable, in order to protect, and preserve the City's source
of revenue and compensation for the use of the public rights -of -way.
(6) It is expressly understood that a franchise fee and an alternative user charge will not
be imposed on the same MCS provider at the same time, for the same period.
(7) An affected MCS provider shall at no time be charged or obligated to pay an
alternative user charge that exceeds five percent (5%) of such provider's gross
revenues (as defined by this ordinance) for any particular reporting period. In the event
that the alternative user charge does exceed five percent (5%) of gross revenues, then
such alternative user charge shall be reduced to reflect an amount not greater than the
five percent (501o) cap.
(8) An affected MCS provider shall pay twenty-five percent (25%) of the alternative user
charge at the end of every three (3) months.
• c.
(1) Except as provided below, no person, or MCS provider shall be permitted to construct,
operate or maintain a multi -channel system which requires the laying or positioning of
cable (coaxial, fiber or functional equivalent) across the rights -of -way of the City,
without having first obtained a franchise, and then entering into a franchise agreement
with the City.
(2) Pursuant to the CCPA, a local government may own and operate a multi -channel
system classified as a cable system. Consequently, should the Council directly, or
indirectly, through any legal means available to the Council, decide to purchase,
acquire, construct, lease, control, or otherwise own a cable system within the territorial
limits of the City, then the Council shall not be required to submit a proposal for, or
receive, a franchise in order to construct, operate, and maintain a cable system within
the geographical limits of the City.
(3) In the case of a person or MCS provider lawfully providing multi -channel service on
July 1, 1984, then such person or MCS provider shall not be required to obtain a
franchise, and enter into a franchise agreement unless the Council expressly requires
the person or MCS provider to do so.
(4) If, as a result of annexation (either previous to, or subsequent to, the effective date of
this ordinance), a previously unfranchised MCS provider comes under the jurisdiction
113
of the City, then such MCS provider shall not be required to obtain a franchise, and
enter into a franchise agreement unless the MCS provider wishes to expand its service
area and Council expressly requires the operator to do so.
(5) Where a person or MCS provider is required by the Council to obtain a franchise, then
the Council shall notify the person or MCS provider, in writing, within thirty (30)
days of the Council's formal action.
(6) After receipt of notification, the affected person or MCS provider has ninety (90) days
to submit an application or proposal in substantially the same form and format as
required by the Council. Then, the affected person or MCS provider's application will
be handled as set forth by either State or local law.
(7) It is the intent of the City that as a matter of policy all MCS provider franchises shall
contain substantially similar minimum terms and conditions. However, this shall not
apply to legitimate SMATV operators who may cross only one street or right-of-way.
(8) The City, to the extent permitted by law, shall always have the right to grant or deny a
franchise as may be deemed in the public interest.
(1) Assignment or Transfer of Franchise
(a) Where required for operation, an MCS provider's franchise may not be
assigned or transferred in whole, or in part, by the affected MCS provider,
without the prior express written approval by the Council.
(b) Any attempted assignment or transfer without such prior written consent shall
constitute a default of such franchise.
(c) In the event of such a default, the Council shall proceed according to the
procedure set forth in this ordinance, and any applicable State law.
(d) At least ninety (90) days before a proposed assignment or transfer of an MCS
provider's franchise is scheduled to become effective, such franchised MCS
provider shall petition in writing for the Council's written consent for such a
proposed assignment or transfer.
(e) The Council will not unreasonably withhold its consent to such an assignment
or transfer. However, in making such a determination, the Council may
consider the following:
(i) experience of proposed assignee or transferee (including conducting an
10
investigation of proposed assignee or transferee's service record in other
communities);
(ii) qualifications of proposed assignee or transferee;
(iii) legal integrity of proposed assignee or transferee;
(iv) financial ability and stability of the proposed assignee or transferee;
(v) if requested by the Council, submittals from the proposed assignee or
transferee, on what, if any, changes it intends to make in
the operation and maintenance of the present multi-
channel system;
(vi) the corporate connection, if any, between the franchised MCS provider,
and proposed assignee or transferee;
(vii) the economic viability or non -viability of the multi -channel system in
the future, based upon certain factors including the impact of the
purchase price on the City and/or the proposed assignee or transferee;
and
(viii) any other legitimate aspect of the proposed assignee's or transferee's
background which could affect the health, safety, and welfare of the
citizenry of City as it relates to the operation of the multi -channel
system.
(f) A copy of the completed sales agreement, or a functionally equivalent
instrument, between the franchised MCS provider and proposed assignee or
transferee shall be provided to the Council, so that the Council may discover
the assumption of obligations by the franchised MCS provider and proposed
assignee or transferee with respect to the multi -channel system. In lieu of the
sales agreement, the Council may accept an attested summary of obligations
assumed by the above -referenced parties.
(g) Before an assignment or transfer is approved by the Council, the proposed
assignee or transferee shall execute an affidavit, acknowledging that it has read,
understood, and intends to abide by both this ordinance, and the applicable
franchise agreement.
(h) In the event of any approved assignment or transfer, the assignee or transferee
shall assume all obligations and liabilities of the former franchised MCS
provider, except as noted below.
(i} An assignment or transfer shall not relieve the former franchised MCS provider
of its liabilities under the franchise agreement until the assignment actually
takes place, or unless specifically relieved by Federal, or State law, or unless
specifically relieved by the Council/ at the time an assignment or transfer is
approved.
(2) Default of Franchise; Revocation, Termination or Cancellation of Franchise.
m
(a) When any event, act or omission (on the part of the franchised MCS provider)
occurs which represents a violation of an integral provision of this ordinance,
or compromises the corporate character, or legal, financial or technical integrity
and/or stability of the multi -channel system or the franchised MCS provider to
such a degree that the interests of the subscribers and users are negatively
affected, then such event, act or omission may be considered a major breach of
this ordinance. Under such circumstances, the Council shall notify the affected
MCS provider in writing, of the specific breach, and direct such franchised
MCS provider to comply with all such provisions of its proposal, franchise
agreement, or this ordinance.
(b) For illustrative purposes only, the events, acts and omissions include, but are
not limited to: bankruptcy, insolvency, failure to pay taxes or franchise fees
(including the alternative user charge if applicable), failure to receive written
Council approval for an assignment or transfer, or failure to abide by the
integral terms and conditions of the franchise agreement, or integral provisions
of this ordinance. For purposes of this Section, "integral" means a provision
which either 1) affects the ability of the customer to receive multi -channel
service, or 2) affects the ability of the Council to receive compensation for the
use of its right-of-ways, or 3) affects the ability of the Council to evaluate an
MCS provider's performance in the technical, financial, and legal aspects of the
multi -channel system.
(c) A copy of such notice of material breach shall be mailed to the surety on the
performance bond.
(d) Within seventy-five (75) days, after such written notice is mailed to a
franchised MCS provider, the Council shall conduct a public hearing on the
matter (unless State law requires a different procedure in which the State
procedure would control).
(e) The Council shall provide written notice to a franchised MCS provider, and the
surety, of the time and place of said public hearing in a manner consistent with
either State law, or approved by the Council.
(f) At the time of the hearing, the affected franchised MCS provider may present
information on the current status of the alleged breach of the franchise
agreement. If the situation has been resolved, or steps are being taken to
resolve the situation, then the franchised MCS provider should present the
information at the hearing.
(g) If the affected franchised MCS provider fails to attend the hearing, and has not
requested a continuance of the hearing, then such franchised MCS provider
41
shall be deemed to have waived its right to a further continuation of the matter,
and may be declared 'in default of the franchise agreement.
(h) After the public hearing, the Council may determine the franchised MCS
provider to be in compliance and dismiss the matter, or may determine that the
CS provider has cured any non-compliance and thereby dismiss the matter,
However, the Council may determine that an ordinance violation exists and
remains uncured. Consequently, upon a finding that the MCS provider violated
an integral ordinance provision, or failed to cure an outstanding ordinance
violation, the Council may direct the affected franchised MCS provider to take
corrective action within a specified period of time, or may declare such
franchised MCS provider in default of the franchise agreement, and thereafter,
may revoke, terminate, or cancel the franchise, unless the franchised MCS
provider presents sufficient mitigating circumstances.
(i) If the Council directs corrective action to take place within a specified time or
declares such franchised MCS provider in default of the franchise agreement,
then that declaration shall be reduced to writing, and the notice of corrective
action or default shall be mailed to such franchised MCS provider, and surety,
within fifteen (15) days of the Council's action.
(j) If within forty-five (45) days, the affected franchised MCS provider, or surety
does not take significant action to rectify the breach, or submit a plan detailing
how the affected MCS provide will eliminate the breach, then the Council shall
revoke such MCS provider's franchise, and shall notify the affected franchised
MCS provider, and surety forthwith, unless there are mitigating circumstances,
(k) The Council reserves the right to assess any charges incurred (including costs
for consultants, witnesses, and hearing preparation) in a default and/or
revocation proceeding to the franchised MCS provider.
i Performanceon
The Council is authorized to design a performance evaluation procedure which
periodically monitors compliance of the franchised MCS provider with the terms and
conditions of both the franchise and this ordinance. Moreover, the Council may
periodically review, and examine whether a franchised MCS provider's financial,
technical, legal, and character qualifications continue to meet required operational,
maintenance, and performance levels in order to ensure that community needs are meet
and the uninterrupted provision of multi -channel services. Such performance
evaluations may be conducted every three (3) years during the franchise term, and may
done as part of any required survey.
IN
(1) Any franchised MCS provider (specifically including any MCS provider classified as a
cable operator) awarded a franchise or renewal franchise after the date this ordinance
becomes effective, shall pay to the City for the privilege and use of the streets, rights -
or -way, easements, and public ways, and other facilities of the City in the operation of
the multi -channel system, and for the City's supervision thereof during the term of the
franchise, a sum of up to five percent (5%) of the annual gross revenues of such non-
exempt franchised MCS provider.
(2) If the FCC, Congress or other governmental entity with authority over multi -channel
service ever allows a governmental entity or Council to increase the franchise fee
beyond five percent (5%), then the Council shall have the authority to increase the
franchise fee to the maximum rate allowable.
(3) It is intended that the franchise fees will promote the health, safety, and welfare of the
citizens of the City. 'Therefore, the five (5%) franchise fee shall be deposited into the
general revenue of the City, unless specifically authorized elsewhere.
(4) A franchised MCS provider shall file with the Council, within ninety (90) days after
the expiration of each of the franchised MCS provider's fiscal quarters, a detailed
financial and revenue statement clearly showing the gross revenues received by such
franchised MCS provider during the preceding quarter and certified by a certified
public accountant or officer of a franchised MCS provider attesting to the accuracy,
completeness, and veracity of the revenue figures. Such statement shall be in the form
and format determined by the Council. Such statement shall include revenue from
whatever source, directly or indirectly derived from, or allowed, or caused to be
derived from, or applicable to the operation of the multi -channel system, or the
provision of any multi -channel service by or to the multi -channel system, for those
revenues and revenue sources applicable to or affecting the franchise fee or the
computational base for the franchise fee. Revenue will be reported by service
category, type, and level showing computations and using incremental billing rates for
all sources, levels, tiers, and types of service and other revenue sources of all kinds
and types.
(5) Payment of the quarterly portion of the franchise fee shall be rendered to the City at
the time the financial and revenue statement is filed.
(6) In the event that payment is not made within forty-five (45) days after the date
specified in this Section, then such franchised MCS provider may be declared in
default of the franchise, and the franchise may be revoked, terminated, or cancelled in
the manner prescribed by this Ordinance.
(7) The Council reserves the right to audit a franchised MCS provider's books, if the
Council deems it necessary. If such audit discovers an underpayment of franchise fees
that exceeds two percent (2%) of the total fee paid for any reporting quarter, then the
23
affected franchised MCS provider shall reimburse the City for the cost of such an
audit. It is specifically understood, that the right of audit and re -computation of any,
and all, amounts paid under a franchise fee, shall always be accorded to the Council.
Et is further understood that the Council shall be bound by the result of any audit it
[�ierforms or causes to be performed, except for instances involving fraud.
(8) If an audit, or other research discovers that franchise fees have been either underpaid
or not paid for a period exceeding six (6) months from the original due date, then the
City may seek full recovery of the underpaid, or non -paid fees plus interest not to
exceed fifteen percent (15%) of the maximum allowable under State law (whichever is
less).
(9) All annual reports due and pertaining to the payment of franchise fees, will be
certified by an officer of the franchised MCS provider, and such provider shall
maintain records used in the preparation of said report, to be produced in their
originality and totality upon request or demand by the Council.
(10) No acceptance of any payment shall be construed as a release of, or an accord, or
satisfaction of, any claim that the City might have for further or additional sums
payable under the terms of this Ordinance, or for any other performance or obligation
of a franchised MCs provider hereunder.
(11) Payments of compensation made by a franchised MCS provider to the City, pursuant
to the provision of this Ordinance, shall be considered in addition to, and exclusive of,
any and all authorized taxes, business license fees, other fees, other levies or
assessments presently in effect, or subsequently adopted.
(12) A franchise fee does not include any items excluded by Section 622 (g) (2) (D) of the
CCPA (codified at 47 USC 542 (g) (2) (D)).
(13) Nothing in this Section shall be construed to limit the authority of the Council to
impose a tax, fee or other assessment of any kind, on any person (other than a
franchised MCS provider) with respect to multi -channel system for which charges are
assessed to subscribers, but not received by a franchised MCS provider. For purposes
of illustration only, this Paragraph shall include the situation(s) where a premium
service directly bills a subscriber, or the franchised MCS provider merely acts as
collection agent for a premium service billing directly to a subscriber, or where a
person leases a channel for commercial use and sells advertising or goods on that
channel, and receives the money directly or through a third party.
(14) For any twelve (12) month period, the fees paid by any person subject to Paragraph
(13) who provides any such multi -channel service shall not exceed five percent (5%)
of such person's gross revenues derived in such period from the provision of such
service over the multi -channel system, or the maximum allowed by law at any time.
(15) If at any time, the highest court of the Nation, or the highest court of the State,
invalidates, voids, or rules as unconstitutional the concept of franchise fees, then the
Council may impose an alternative user charge on the franchised MCS provider, in the
manner set forth in this Ordinance.
(16) In light of Paragraph (15) of this Section, and recognizing that an alternative user
charge may affect a franchised MCS provider, please note that the franchise agreement
may contain express language which details a different method or manner for
collection of franchise fees should the way they historically have been calculated (as a
percentage of gross revenues) be ruled unconstitutional or unenforceable, so that the
City's source of revenue and compensation for the use of the public right-of-way may
be protected.
KI
1330sM
RATE
PROVISIONS
.,
Rates
for the
basic
(1) Basic service tier rates. Basic service tier rates are subject to regulation by the City
in order to assure that they are in compliance with the requirements of 47 U.S.C. §
543. Rates that are demonstrated, in accordance with this ordinance, not to exceed the
"Initial Permitted Per Channel Charge" or the "Subsequent Permitted Per Channel
Charge" as described below, or the equipment charges as specified in Subsection B
below, will be accepted as in compliance. The maximum monthly charge per
subscriber for the basic service tier offered by a cable operator shall consist of a
permitted per channel charge multiplied by the number of channels on the tier, plus a
charge for franchise fees. The maximum monthly charges for the basic service tier
shall not include any charges for equipment or installations. Charges for equipment
and installations are to be calculated separately as described below.
(2) Initial Permitted Per Channel Charge.
(a) For purposes of this Section, the initial date of regulation for the basic service
tier shall be the date on which the City gives written notice to the cable
operator that (A) the City has been certified by the Commission to regulate
rates for the basic service tier and (B) this ordinance has been adopted by the
City.
(b) For purposes of this Section, rates "in effect on the initial date of regulation" or
"in effect on September 30, 1992," shall be the rates charged to subscribers for
service received on that respective date.
(c) The permitted per channel charge on the initial date of regulation shall be, at
the election of the cable operator, either:
(i) A charge determined pursuant to a cost -of -service proceeding; or
(ii) The charge specified below as applicable;
(A) If the MCS provider's per channel charge for the basic service
tier and equipment in effect on the date of initial regulation is
equal to or below the benchmark per channel charge, as adjusted
forward for inflation from September 30, 1992, to the date of
initial regulation, then the permitted per channel charge shall be
the per channel charge in effect on the date of initial regulation,
adjusted for equipment.
(B) If: (1) The MCS provider's per channel charge for the basic
service tier and equipment in effect on the date of initial
regulation is above the benchmark per channel charge, as
adjusted forward for inflation from September 30, 1992, until the
initial date of regulation, and:
(2) The operator's per channel charge for the basic service tier
and equipment in effect on September 30, 1992, was above the
benchmark per channel charge, then the permitted per channel
charge is nine -tenths of the per channel charge in effect on
Mal
September 30, 1992, but no lower than the benchmark per
channel charge, additionally adjusted for inflation from
September 30, 1992, to the initial date of regulation, for
equipment, and for any changes in the number of channels
offered on the basic service tiers.
(C) If: (1) The operator's per channel charge for the basic service
tier and equipment in effect on the date of initial regulation is
above the benchmark per channel charge, as adjusted forward for
inflation from September 30, 1992, until the initial date of
regulation, and:
(2) The operator's per channel charge for the basic service tier
and equipment in effect on September 30, 1992, was below the
benchmark per channel charge, then the permitted per channel
charge is the benchmark rate per channel adjusted for inflation
from September 30, 1992, to the initial date of regulation, for
equipment, and for any changes in the number of channels
offered on the basic service tier.
(3) Subsequent Permitted Per Channel Charge. After the initial date of regulation, the
permitted channel charge for the basic service tier shall be, at the election of the cable
operator, either:
(a) A per channel rate determined pursuant to a cost -of -service showing, or;
(b) The prior permitted per channel charge previously approved by the City,
adjusted for inflation and external costs in accordance with the price cap
requirements set forth in Paragraph (4) of this Section.
(4) Price cap requirements
(a) Inflation adjustments. Permitted per channel charges for the basic service
tier may be adjusted periodically on account of inflation. Adjustments to
permitted per channel charges on account of inflation shall be based on
changes in the Gross National Product Price Index ("GNP -PI") published by the
Bureau of Economic Analysis of the United States Department of Commerce.
(b) External costs. Permitted per channel charges for the basic service tier may
also be adjusted for changes in external costs measured on a per channel per
subscriber basis. To the extent external cost increases are greater or less than
the GNP -PI for the relevant period, the per channel charge will be adjusted
accordingly. Per channel charges may not be increased if external costs other
than franchise fees increase at a rate less than inflation. Permitted per channel
charges also shall be decreased on account of external costs to the extent such
costs decrease from previous levels.
(i) Categories. External costs shall consist of costs in the following
categories:
(A) State and local taxes applicable to provision of cable television
service,
(B) Franchise fees;
(C) Costs of complying with franchise requirements, including costs
RA
of providing public, educational, and governmental access
channels as required by the City;
(D) Retransmission consent fees; and
(E) Programming costs.
(ii) The permitted per channel charge for the basic service tier shall be
adjusted on account of programming costs and retransmission consent
fees only for programming or broadcast signals offered on that tier.
(iii) The permitted per channel charge shall not be adjusted for costs of
retransmission consent fees or changes in those fees incurred prior to
October 6, 1994.
(iv) The starting date for adjustments on account of external costs for the
basic service tier shall be the initial date of regulation or 180 days from
September 1, 1993, if the initial date of regulation occurs on or after
180 days from September 1, 1993.
(v) Changes in franchise fees shall not result in an adjustment to permitted
per channel charges, but rather shall be calculated separately as part of
the maximum monthly charge per subscriber for the basic service tier.
(vi) Adjustments to permitted per channel charges on account of increases in
costs of programming obtained from affiliated programmers shall be the
lesser of actual increases or the previous permitted rate level increased
by the amount of inflation.
(vii) Adjustments to permitted per channel charges on account of increases in
costs of programming shall be further adjusted to reflect any revenues
received by the operator from the programmer.
(viii) No unreasonable cost in any category shall be included.
{1) Scope. The equipment regulated under this Section consists of all equipment in a
subscriber's location that is used to receive the basic service tier, regardless of whether
such equipment is additionally used to receive other tiers of regulated programming
service and/or unregulated service. Such equipment shall include, but is not limited
to:
(a) Converter boxes;
(b) Remote control units;
(c) Connections for additional television receivers, and
(d) Other cable home wiring.
Subscriber charges for such equipment shall not exceed charges based on actual costs
in accordance with the requirements set forth below.
(2) Unbundling. A cable operator shall establish rates for remote control units, converter
boxes, other customer equipment, installation, and additional connections separate from
rates for basic service tier. In addition, the rates for such equipment and installations
shall be unbundled one from the other.
(3) Equipment basket. A cable operator shall establish an Equipment Basket, which will
include all costs associated with providing customer equipment and installation under
this Section. Equipment Basket costs shall be limited to the direct and indirect
material and labor costs of providing, leasing, installing, repairing, and servicing
customer equipment, as determined in accordance with the cost accounting and cost
allocation requirements of this Ordinance. The Equipment Basket shall not include
general administrative overhead including general marketing expenses. The Equipment
Basket may include a reasonable profit.
(4) Hourly service charge. A cable operator shall establish charges for equipment and
installation using the Hourly Service Charge ("HSC") methodology. The HSC shall
equal the operator's annual Equipment Basket costs, excluding the purchase cost of
customer equipment, divided by the total person hours involved in installing, repairing,
and servicing customer equipment during the same period. The purchase cost of
customer equipment shall include the cable operator's invoice price plus all other
costs incurred with respect to the equipment until the time it is provided to the
customer. The HSC is calculated according to the following formula.
HSC =
0
Where, EB = annual Equipment Basket Cost:
CE = annual purchase cost of all customer equipment; and
H = person hours involved in installing and repairing equipment per
year.
(5) Installation charges. Installation charges shall be either.
(a) The HSC multiplied by the actual time spent on each individual installation; or
(b) The HSC multiplied by the average time spent on a specific type of
installation.
(6) Remote charges. Monthly charges for rental of a remote control unit shall consist of
the average annual unit purchase cost of the type of remote leased, including
acquisition price and incidental costs such as sales tax, financing and storage up to the
time it is provided to the customer, added to the product of the HSC times the average
number of hours annually repairing or servicing a remote, divided by 12 to determine
the monthly lease rate for a remote according to the following formula:
Monthly —
Charge
MANIVEHM
12
Where, IM = average hours repair per year; and
UCE = average annual unit cost of remote.
Separate charges shall be established for each significantly different type of remote
m
control unit.
(7) Other equipment charges. The monthly charges for rental of converter boxes and
other customer equipment shall be calculated in the same manner as for remote control
units. Separate charges shall be established for each significantly different type of
converter box and each significantly different type of other customer equipment.
(8) Additional connection charges. The costs of installation and monthly use of additional
connections shall be recovered as charges associated with the installation and
equipment cost categories, and at rate levels determined by the actual cost
methodology presented in the foregoing paragraphs. An operator may recover
additional programming costs and the costs of signal boosters on the customers
premises, if any, associated with the additional connection as a separate monthly
unbundled charge for additional connections.
(9) Charges for equipment sold. A cable operator may sell customer premises equipment
to a subscriber. The equipment price shall recover the operator's cost of the
equipment, including costs associated with storing and preparing the equipment for
sale up to the time it is sold to the customer, plus a reasonable profit. An operator
may sell service contracts for the maintenance and repair of equipment sold to
subscribers. The charge for a service contract shall be the HSC times the estimated
average number of hours for maintenance and repair over the life of the equipment.
(10) Promotions. A cable operator may offer equipment or installation at charges below
those determined under Paragraphs (5) through (7) of this Section, as long as those
offerings are reasonable in scope in relation to the operator's overall offerings in the
Equipment Basket and not unreasonably discriminatory. Operators may not recover
the cost of a promotional offering by increasing charges for other Equipment Basket
elements, or by increasing programming service rates above the maximum monthly
charge per subscriber prescribed by this ordinance. As part of a general cast -of -
service showing, an operator may include the cost of promotions in its general system
overhead costs.
(11) Franchise fees. Equipment charges may include a properly allocated portion of
franchise fees paid to the City.
MINIMUM IDIOM
(1) Applicability. The requirements of this Section are applicable for purposes of rate
adjustments on account of external costs and for cost -of -service showings.
(2) Generally accepted accounting principles. Cable operators maintain their accounts in
accordance with generally accepted accounting principles, except as otherwise directed
by the City.
(3) Accounts required. Cable operators shall maintain accounts in a manner that will
enable identification of appropriate costs and application of the City's cost assignment
and allocation procedures, to cost categories necessary for rate adjustments due to
changes in external costs and for cost -of -service showings. Such categories shall be
sufficiently detailed and supported to permit verification and audit against the
company's accounting records.
U11
(4) Accounting level. Except to the extent indicated below, cable operators shall aggregate
expenses and revenues at either the franchise, system, regional, or company level in a
manner consistent with practices of the operator as of April 3, 1992. However, in all
events, cable operators shall identify at the franchise level their costs of franchise
requirements, franchise fees, local taxes, and local programming.
(5) Cost Allocation Requirements.
(a) For purposes of establishing expenses at the franchise level, cable operators
shall allocate expenses and revenues aggregated at higher levels to the
franchise level based on the ratio of the total number of subscribers served at
the franchise level to the total number of subscribers served at the higher level.
(b) Except to the extent indicated below, all categories of costs allocated to, or
identified at, the franchise level shall be allocated to the basic service tier
based on the ratio of channels in the basic tier to the total number of channels
offered in the franchise area, including non -regulated and leased commercial
access channels. These costs shall be allocated to each tier of cable
programming services based on the ratio of channels in that tier to the total
number of channels offered in the franchise area.
(c) Costs of programming and retransmission consent fees, however, shall be
allocated only to the tier on which the programming or broadcast signal at
issue is offered.
(d) Costs of franchise fees shall be allocated among equipment and installations,
program service tiers and subscribers in a manner that is most consistent with
the methodology of assessment of franchise fees by the City.
(e) Costs of public, educational, and governmental access channels carried on the
basic tier shall be directly assigned to the basic tier where possible.
(6) Common costs. Expenses which cannot be assigned to any single expense or service
category shall be described as common costs. Common costs shall be allocated to
expense categories as follows:
(a) Wherever possible, common costs are to allocated to service cost categories
based on direct analysis of the origin of the costs themselves.
(b) When direct analysis is not possible, common costs shall, if possible, be
allocated to service cost categories based on an indirect, cost -causative linkage
to other costs directly assigned or allocated to the service cost category.
(c) When neither direct nor indirect measures of cost allocation can be found,
common costs shall be allocated to each service cost category based on the
ratio of all costs directly assigned and attributed to a service cost category over
total costs directly assigned and attributed to a service cost category over total
costs directly assignable and attributable.
(7) Unrelated expenses and revenues. Cable Operators shall exclude from cost categories
used to develop rates for the provision of basic service tier and equipment, any direct
or indirect expenses and revenues not related to the provision of such services.
Common costs of providing basic service tier and equipment, and unrelated activities
shall be allocated between them as specified in the paragraph above.
(8) Part-time channels. In situations where a single channel is divided on a part-time
31
basis and is used to deliver service associated with diterent. tiers or with pay pe
channel or pay per view service, a reasonable and documented allocation of that
channel between services shall be required along with the associated revenues a
costs* I
(1) The costs of satisfying franchise requirements to support public, education, and
governmental channels shall consist of the sum of:
(a) All per channel costs for the number of channels used to meet franchise
requirements for public, educational, and governmental channels;
(b) Any direct costs of meeting such franchise requirements; and
(c) A reasonable allocation of general and administrative overhead.
(2) The costs of satisfying any other requirement under the franchise shall consist of the
direct and indirect costs, including a reasonable allocation of general and
administrative overhead.
Eo Charges for customerchanges.
(1) This Section shall govern charges for any changes in service tiers or equipment
provided to the subscriber that are initiated at the request of a subscriber after initial
service installation.
(2) The charge for customer changes in service tiers effected solely by coded entry on a
computer terminal or by other similarly simple methods shall be a nominal amount,
not exceeding actual costs, as defined below.
(3) The charge for customer changes in service tiers or equipment that involve more than
coded entry on a computer or other similarly simple method shall be based on actual
cost. The actual cost charge shall be either the HSC, as defined in Subsection B of
this Section, multiplied by the number of person hours needed to implement the
change, or the HSC multiplied by the average number of person hours involved in
implementing customer changes.
(4) A cable operator may establish a higher charge for changes effected solely by coded
entry on a computer terminal or by other similarly simple methods, subject to approval
by the City for a subscriber changing service tiers more than two times in a twelve
month period, except for such changes ordered in response to a change in price or
channel line-up. If a cable system adopts such an increased charge, the cable system
must notify all subscribers in writing that they may be subject to such a charge for
changing service tiers more than the specified number of times in any twelve month
period.
(5) Downgrade charges that are the same as, or lower than, upgrade charges are evidence
of the reasonableness of such downgrade charges.
(b) For 30 days after notice of retiering or rate increases, a customer may obtain changes
in service tiers at no additional charge.
m
Information to be provided .r operators on •r 1ly subscriber bills.
♦. cableoperator must provide the f! ! • information to subscribers on monthly
bills:
.. ♦ • . ..
! • basic
rates and related equipment and installation charges are regulated by the City.
If you have any questions or comments regarding these rates, you may call the
City at (512) 930-3636 or write the City at P.O. Box 409, Georgetown, Texas,
• it 1
(b) The FCC community unit identifier for the cable system.
(2) Negative option billing.
A cable operator shall not charge a subscriber for any service or equipment that the
subscriber has not affirmatively requested by name. This provision, however, shall not
preclude the addition or deletion of a specific program from a service offering, the
addition or deletion of specific channels from an existing tier of service, or the
restructuring or division of existing tiers of service that do not result in a fundamental
change in the nature of an existing service or tier of service, provided that such change
is otherwise consistent with applicable regulations. A subscriber's failure to refuse a a
cable operator's proposal to provide such service or equipment is not an affirmative
request for service or equipment. A subscriber's affirmative request for service or
equipment may be made orally or in writing.
(3) Subscriber bill itemization.
(a) Cable operators may identify, as a separate line item, on each regular
subscriber's bill.
(i) The amount of the total bill assessed as a franchise fee.
(ii) The amount of the total bill assessed to satisfy any requirements
imposed on the cable operator by the franchise agreement to support
public, educational, or governmental channels or the use of such
channels.
(iii) The amount of any other fee, tax, assessment, or charge of any kind
imposed by any governmental authority on the transaction between the
operator and the subscriber. In order for a governmental fee or
assessment to be separately identified under this Section, it must be
directly imposed by a governmental body on a transaction between a
subscriber and an operator.
(b) The charge identified on the subscriber bill as the total charge for cable service
should include all fees and costs itemized pursuant to this Section.
(4) Notification of proposed rate increase.
(a) A cable operator shall provide written notice to a subscriber of any increase in
the price to be charged for the basic service tier or associated equipment at
KC'
least 1 days before any proposed increase is effective.notice
includeprovision statin• that protests to such prices may be filed with the
City of Georgetown at P.O. Box 409, Georgetown, Texas 78627. The notice
shall also include a statement that such protests must be filed with the City no
later than 30 days after the notice is received by the subscriber.
(b) In addition to the notice required in Subparagraph (a), the cable operator shall
give the City a minimum of 30 days advance written notification of any
changes in rates for cable programming service or associated equipment,
(5) Billing Practices.
(a) Within the "Notice" that is required by this ordinance, subscribers shall be
informed of at least the following billing practices of an MCS provider:
(i) billing procedures (including payments necessary to avoid
discontinuance of service);
(ii) payment due and delinquent dates;
(iii) amount or percentage of late charges, if any;
(iv) advance billing options;
(v) resolution procedures for billing disputes, complaints, and inquiries;
(vi) refund policy for service interruptions, substandard signal quality, or
uncontracted service;
(vii) current service rates in a detailed and understandable format;
(viii) procedure and amount of charges for installation or relocation of an
MCS provider's facilities and/or equipment;
(ix) current schedule and explanation for any billed charges or other non -
regularly occurring fees invoiced to subscribers; and
(x) any lower -income or fixed -income rates together with any qualifications
to obtain such rates.
(b) All periodic service bills shall plainly state that service may be paid on an
individual monthly basis, by the end of the month for which the service was
delivered, with no late charge or penalty assessed.
(c) Existing subscribers shall be informed of the items listed in Subparagraph (a) at
least once every twelve (12) months.
(d) Whenever there is a change in an MCS provider's billing practices or payment
requirments, all subscribers must be notified in writing at least thirty
(30) days before such billing practices or payment requirements become
effective.
(e) In any case where a subscriber requests a cancellation or reduction of service
within thirty (30) days after the notification of a scheduled rate or
MI
• g... adjustment, then the subscriber'sliabilityfor the newly
implemented rate or charge shall cease from the moment that the rate or
charge adjustment becomes l
(1) Initiation of review of basic cable service and equipment rates.
A cable operator shall file its schedule of rates for the basic service tier and associated
equipment with the city within 30 days of receiving written notification from the City
that the City has been certified by the Commission to regulate rates for the basic
service tier, or by November 15, 1993, whichever is later.
(2) City review of basic cable rates and equipment costs.
(a) After a cable operator has submitted to the City, for review, its existing rates
for the basic service tier and associated equipment costs, or a proposed increase
in these rates (including increases in the baseline channel charge that results
from reductions in the number of channels in a tier), the existing rates will
remain in effect or the proposed rates will become effective after 30 days from
the date of submission to the City. Provided, however, that the City may toll
this 30-day deadline for an additional time by issuing a brief written order as
described below within 30 days of the rate submission explaining that it needs
additional time to review the rates. The City may, at any time, require the
cable operator to produce additional information, including proprietary
information, that the City deems necessary in order to make a rate
determination. If proprietary information is provided, the provisions of
Paragraphs (3) below will apply to such information.
(b) Upon receipt by the City, the cable operator's submittal shall be available for
public inspection and copying. Comments on the submittal by interested
persons may be submitted in writing or orally at a City Council meeting held at
any time during the initial 30-day review period. Written comments shall be
addressed to the City Manager, and must be received prior to the end of the
30-day review period, unless review period has been extended by the City, then
public comment time shall be extended also.
(c) If a cable operator submits a proposed rate increase for review that appears to
exceed the presumptively reasonable level and does not include a cost -of -
service showing to justify the rate, the City will permit the cable oeprator to
cure this deficiency and submit a cost -of -service showing.
(d) If the City is unable to determine, based upon the material submitted by the
cable operator that the existing or proposed rates are within the permitted basic
service tier charge or actual cost of equipment as defined in the Rate
Provisions Section of this ordinance, or if a cable operator has submitted a
cost -of -service which seeks to justify a rate above the basic service tier charge
as defined in the Rate Provisions Section of this ordinance, the City may toll
the 30-day deadline in Subparagraph (a) of this Section to request and/or
9N
consider additional information or to consider the comments from interested
parties as follows.
(i) For an additional 90 days in cases not involving cost -of -service
showings; or
(ii) For an additional 150 days in cases involving cost -of -service showings.
The order tolling the effective date of the proposed rate shall explain
why the City could not make the necessary determination, and it shall
also provide the cable operator an opportunity to cure any deficiencies
in its original filing. During the additional time periods provided in this
Paragraph, comments from interested persons may be submitted in
writing, as provided in Subparagraph (b) of this Section, or orally
during at least one City Council meeting during the period of
abatement.
(e) If the City has availed itself of the additional 90 or 150 days permitted in
Subparagraph (c) of this Section, and has taken no action within these
additional time periods, then the proposed rates will go into effect at the end of
the 90 or 150 day periods, or existing rates will remain in effect at such times,
subject to refunds if the City subsequently issues a written decision
disapproving any portion of such rates. Provided, however, that in order to
order refunds, the City must have issued a brief written order to the cable
operator the end of the 90 or 150-day period permitted in Subparagraph (c) of
this Section directing the operator to keep an accurate account of all amounts
received by reason of the rate in issue and on whose behalf such amounts were
paid.
(3) Proprietary information.
(a) If the City has required the cable operator to produce proprietary information
under the provisions of this ordinance, the cable operator may submit therewith
a request that such information not be made routinely available for pubic
inspection. A copy of the request shall be attached to and shall cover all of the
materials to which it applies and all copies of those materials. If feasible, the
materials to which the request applies shall be physically separated from any
materials to which the request does not apply. If this is not feasible, the
portion of the materials to which the request applies shall be identified.
(b) Each such request shall contain a statement of the reasons for withholding the
materials from inspection and of the facts upon which those reasons are based.
If the request is that the materials be withheld from inspection for a limited
period of time, that period shall be specified.
(c) Casual requests which do not comply with the requirements of Subparagraphs
(a)and (b) of this Section will not be considered.
(d) Upon receipt of a request in compliance with Subparagraphs (a) and (b), the
City will not grant routine public access to the materials. A letter to that effect
will be placed in a public file in lieu of the materials withheld from public
inspection.
we
(e) Provided, however, if a written request for the materials is received by the City
pursuant to the Open Records Act, Chapter 552, Texas Government Code, the
City will notify the person providing the materials of the request for the
materials. If the person providing the materials requests the City to do so, the
City will request an opinion from the Attorney General, pursuant to the Open
Records Act, regarding the public availability of the materials. If the person
providing the materials does not request the City to request an opinion from the
Attorney General, the City may, at its option, either request such an opinion or
provide the materials to the public.
(f) If the Attorney General issues an opinion or letter ruling requiring the City to
make the materials available to the public, the materials will be made available
for public inspection.
(g) If no request for confidentiality is submitted, the City assumes no obligation to
consider the need for non -disclosure.
(4) Burden of proof.
(a) A cable operator has the burden of proving that its existing or proposed rates
for basic service and associated equipment comply with 47 U.S.C. § 543, and
this ordinance.
(b) For an existing or a proposed rate for basic service tier or associated equipment
that is within the permitted tier charge and actual cost of equipment as set forth
in the Rate Provisions Section of this ordinance, the cable operator must submit
the appropriate FCC form to the City.
(c) For an existing or a proposed rate for basic service tier that exceeds the
permited tier charge, the cable operator must submit to the City a cost -of -
service showing to justify the proposed rates. The cost -of -service showing
must be in conformance with Accounting and Cost Allocation Requirements as
adopted and amended by the Commission for cable system operators.
(5) Written decision.
(a) The City shall issue a written decision in a ratemaking proceeding whenever it
disapproves an initial rate for the basic service tier or associated equipment in
whole or in part, disapproves a request for a rate increase in whole or in part,
or approves a request for an increase in whole or in part over the objections of
interested parties. The City is not required to issue a written decision that
approves an unopposed existing or proposed rate for the basic service tier or
associated equipment.
(b) Public notice shall be given of any written decision required in Subparagraph
(a) of this Section, by making the text of any written decision available to the
public, and by publication of the decision one time in the official newspaper of
the City.
(6) Reduction of Rates? Prescription of Rate.
(a) The City may order a cable operator to implement a prospective reduction in
Gil
basic service tier is associated equipment . necessary • bring rates
into compliance with the standards set forth in this ordinance.
(b) The City may prescribe a reasonable rate for the basic service tier or associat
equipment after it determines that a proposed rate is unreasonable.
(7) Refunds.
(a) The City may order a cable operator to refund to subscribers that portion of
previously paid rates determined by the City to be in excess of the permitted
tier charge or above the actual cost of equipment, unless the operator has
submitted a cost -of -service showing which justifies the rate charged as
reasonable. Before ordering a cable operator to refund previously paid rates to
subscribers, the City shall give the operator notice and opportunity to comment.
The operator's opportunity to comment upon the proposed refunds may be at
any meeting of the City Council during the City's period of review of the
operator's rates. If the City has extended its review period under Subsection G
of this Section, then the operator, prior to refunds being ordered, may request
an opportunity to appear before the City Council to comment upon the
proposed refunds.
(b) An operator's liability for refunds is limited to a one-year period, except that
an operator that fails to comply with a valid rate order issued by the City shall
be liable for refunds commencing from the effective date of such order until
such time as it complies with such order.
(c) The refund period shall run as follows:
(i) From the date the operator implements a prospective rate reduction back
in time to September 1, 1993, or one year, whichever is shorter.
(ii) From the date the City issues an accounting order pursuant to
Subsection G, and ending on the date the operator implements a
prospective rate reduction ordered by the City or one year, whichever is
shorter.
(d) The cable operator, in its discretion, may implement a refund in the following
manner:
(1) By returning overcharges to those subscribers who actually paid the
overcharges, either through direct payment or as a specifically identified
credit to those subscribers' bills; or
(2) By means of a prospective percentage reduction in the rates for the
basic service tier or associated equipment to cover the cumulative
overcharge. This shall be reflected as a specifically identified, one-time
credit on prospective bills to the class of subscribers that currently
subscribe to the cable system.
(e) Refunds shall include interest computed at applicable rates published by the
Internal Revenue Service for tax refunds and additional tax payments.
KH
I3.3U40 REGUIATORY PROVISIONS
A. Notification of Customers and MCS Providers' Rights andResponsibilities;
General Policy.
(1) The Council recognizes that it is critical that a customer of an MCS provider fully
understands and realizes the rights and responsibilities of both the customer and MCS
provider with respect to the provision, maintenance, and repair of multi -channel
service.
(2) Further, the Council believes that if sufficient information is provided to a customer
on certain customer service practices such as rates, billing periods, number and types
of services provided, and rules concerning equipment use and return, then that
customer will have the information necessary to make an informed decision on what,
if any, multi -channel services to subscribe to, and receive.
(3) In order to provide customers with the variety of information needed to make an
informed decision, and to ensure that customers are notified of their, and the MCS
provider's rights and responsibilities with respect to the multi -channel system, an MCS
provider must provide a customer with a written "Notice of a Customer's and MCS
Provider's Rights and Responsibilities With Respect to the Provision of Multi -Channel
Service."
(4) The "Notice of a Customer's and MCS Provider's Rights and Responsibilities With
Respect to the Provision of Multi -Channel Service" shall be provided at the time of
initial installation. Thereafter, a subscriber shall be provided with a written "Notice" at
least once every twelve (12) months. If however, an MCS provider amends, repeals,
adds, deletes, modifies, or makes other changes to any customer service practice that
is required in this ordinance, then said MCS provider shall provide a subscriber with
such written notification at least thirty (30) days prior to the effective date of such
amendment, repeal, addition, deletion, modification, or other change.
Be Notice of Customer's and MCS Provider's Rights and Responsibilities With
Respect i the Provision of MultiwChannelContents.
{1) At the time an MCS provider is required to furnish an initial or annual "Notice", such
"Notice" shall contain, at a minimum, the following:
(a) an up-to-date listing of the specific multi -channel services provided --clearly
indicating and isolating the basic, premium, and informational services offered,
as well as the service tiers or service clusters offered;
(b) notification of a subscriber's ability to purchase or lease, from the MCS
provider, a lock box, parental control mechanism, or other device which will
prohibit the viewing of a particular multi -channel service during a period
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selected by the subscriber;
(c) pursuant to FCC regulations, a subscriber's ability of purchasing or using an
or input selector switch;
(d) a comprehensive listing and explanation of all rates and charges (including
rates for standard or basic and premium channels/services, particular service
tiers or service clusters, current discount or promotional fees, installation
charges, and security deposits, if any);
(e) if service clustering is available, then a description and explanation of any
penalties, credits, restrictions, upcoming (within sixty (60) days of the
"Notice") service clustering changes or differing alignments, or other pertinent
information;
(f) a comprehensive listing and explanation of all billing options available (such as
monthly, quarterly, or yearly, and/or discounts for pre -payments);
(g) the customer service office hours and telephone number(s) in a manner
consistent with the specific policy set forth in this ordinance;
(h) the billing practices of an MCS provider in a manner consistent with the
specific policy set forth in this ordinance;
(i) the specific customer complaint/inquiry resolution policy that is adopted and
followed by an MCS provider and which is consistent with the parameters set
forth in this ordinance;
(j) if applicable, and permitted, the rules and regulations for using any facilities,
including a studio or mobile van of an MCS provider;
(k) the method of securing a voluntary disconnection in a manner consistent with
the specific policy set forth in this ordinance,
(1) rules relating to both connections, and involuntary disconnections;
(m) the extent of the credit/refund policy in a manner consistent with the specific
policy set forth in this ordinance;
(n) the equipment use and return policy together with any required security
deposits in a manner consistent with the specific policy set forth in this
ordinance; and
(o) the additional rights of blind, hearing -impaired or ambulatory -impaired
customers in a manner consistent with the specific policy set forth in this
ordinance.
(2) The "Notice" shall be written in plain, simple to understand English. The "Notice"
shall contain no fine print, and any exclusions, limitations, or caveats shall be clearly
indicated as such in the "Notice".
(3) The "Notice" may be delivered to a subscriber via an insert in the subscriber's
periodic invoice, or through a special mailing.
(1) The Council both recognizes and determines that as a matter of consumer protection, a
subscriber should be charged only for those services that such subscriber has
affirmatively requested. Therefore, an MCS provider may not bill or invoice any
affirmative reikuested b the
subscriber.
(2) For purposes of this Section, a subscriber's affirmative request need not be in writing,
but an provider • on an oral requestmust keep an accurate,precise, • !'
recordexact of date, • • time on i . • the CSR, or . to
•rn--the request was• •
(3) For purposes of this Section, a subscriber shall be deemed to have affirmatively
requested a multi -channel service if.
(a) the subscriber voluntarily makes payment for the multi -channel service after an
initial free trial period; and
(b) there was included, in the notice or advertising material describing the service,
a statement clearly advising the subscriber that such subscriber has incurred no
obligation to pay for such service, and that such subscriber need not take any
action to avoid incurring any such obligation.
(4) Moreover, an MCS provider may not automatically enroll a subscriber into a different
class or tier of multi -channel service without first informing (at least thirty days in
advance) such subscriber of any, and all, costs associated with such a different class or
tier of multi -channel service.
(5) Additionally, an MCS provider may not invoice a subscriber for disconnecting or
downgrading from a "negatively promoted" or automatically enrolled class or tier of
multi -channel service,
(6) Should a subscriber be charged for a multi -channel service in violation of this Section,
then the MCS provider shall provide a subscriber with an adjustment or billing credit
on the next available billing statement. Moreover, in such case, and MCS provider
shall not consider a subscriber delinquent for failure to pay a charge for a non -
affirmatively requested multi -channel service.
Do Special Rules ConcernConcernig Sales Solicitations.
(1) For MCS providers engaged in sales solicitations (via phone, cellular phone,
interactive multi -channel system, PCN, or other type of personal communications
system) the following rules apply (unless pre-empted by federal or State law):
(a) sales solicitors must identify themselves at the outset of the communication;
(b) sales solicitors must not engage in bait -and -switch tactics --that is they must not
initially offer a lower -priced service only to inform the customer of its
im
or offer the lopriced service in order pressure sale
higher -priced YY
(c) sales solicitors must quote the full and complete cost for any service sold or
subscribed to during the courseof the communication.
(2) The restrictions outlined shall not apply to sales solicitations which are done or occur
in the following circumstances:
(a) in response to a customer's specific request;
(b) at a time mutually agreed upon by an authorized representative of the MCS
provider and the customer;
(c) in connection with a charitable contribution or charitable purpose;
(d) in connection with a home shopping or travel -related service; and
(e) where the sales solicitor has established (and can document) a previous, or on-
going commercial relationship with the customer.
(3) The restrictions outlined shall not apply to sales solicitations via printed material in
that such printed solicitations or advertisements are deemed not as disruptive or
intrusive as solicitations noted in Paragraph (1).
Eo SpecialRules1MenumDriven Systems, Service Clusters, c Packagmig 1
Service Tiers.
(1) The Council recognizes that the concept of menu -driven program/service selection has
both positive and negative aspects. On the one hand, menu -driven program/service
selection allows the greatest flexibility for a subscriber in that it permits the subscriber
to essentially create a program/ service package tailored to the subscriber's budget,
viewing habits, and informational needs. On the other hand, menu -driven
program/service selection is susceptible to unauthorized or unknowing purchases, and
uninformed program choices if certain procedural and operational safeguards are not
maintained.
(2) Should an MCS provider implement and/or offer menu -driven program/service
selection for all, or the majority, of the MCS provider's multi -channel services, then
the Council reserves the power to adopt additional rules and regulations concerning the
following potential problem areas:
(a) notification to the subscriber on a periodic (at least monthly) basis of the exact
costs for each menu -driven program/service, including any installation or
equipment rental charges;
(b) notification of what constitutes, or what is required for selection or subscription
to a particular program/service;
(c) limitations on negative option marketing plans when done in connection with a
menu -driven system unless the subscriber is initially informed, consents (in
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writing), and periodically (at least semi-annually) renews the consent to be
included on a list of potential subscribers; and
(d) restricting access to menu -driven program/service selection by subscribers
(through the use of individual, non -duplicative access codes or some other
means), in order to limit unauthorized purchases, or purchases above a certain
pre-set amount (without additional written approval).
(3) If, at the time an MCS provider implements and/or offer menu -driven program/service
selection, such MCS provider also adopts an operational policy which protects
subscribers from those potential problem areas listed above, then the Council shall not
exercise its additional regulatory authority on this subject, unless there is
documentation that the adopted policy of the MCS is not being enforced, or is
ineffective in safeguarding subscribers from the potential abuses listed above.
(4) As for service clusters, and the packaging of service tiers, and to provide both a
disincentive for "bait and switch tactics," and to promote cluster and tier stability, an
MCS provider may not switch any particular multi -channel service from one tier or
cluster to another without sixty (60) days notice; provided however, that upon sixty
(60) days prior notice, and MCS provider may re -arrange, re -tier, re -cluster, or
otherwise offer its multi -channel service.
(5) Nothing contained in this Section shall be construed as mandating any particular
programming choice being provided to a subscriber. Nor should this Section be
construed as requiring any particular program, service, cluster, or tier. Rather, this
Section is designed to promote cluster, and tier stability, so that a subscriber may
choose a program, service, cluster, or tier that best suits the subscriber's individual
programming and informational needs.
(1) Customer Service Hours; Capabilities of Customer Service Office; and Telephones.
(a) In order to facilitate the needs of the local customers, an MCS provider shall
maintain a customer service office which is both within the City, and easily
accessible to customers.
(b) The customer service office shall be open at least forty (40) hours per week
(exclusive of holidays).
(c) Within the forty (40) hours per week that a customer service office must be
open, an MCS provider must provide office hours either on at least two (2)
evenings (after 5 p.m.), or on Saturdays and/or Sundays (if not prohibited by
State law).
(d) The customer service office should have an adequate and knowledgeable sta,'
in order to handle the vast majority of customer service inquiries, specificall
including, but i t • billing inquiries,refunds,service • -
equipment service and repair, payment of bills and other charges.
(e) An MCS provider may install (at its customer service office) an after hours
deposiory in order to collect invoice payments, and receive requests for service
appointments (including connections, and disconnections) after scheduled office
hours.
(f) An MCS provider may install an automated (audio, or video) customer
assistance device or machine which can handle various types of customer
inquiries.
(g) Neither the presence of an after hours depository or automated customer
service device relieves an MCS provider from maintaining the minimal
required number of office hours, or adequate CSR staff to handle the majority
of service inquiries (unless the MCS provider can demonstrate to the Council's
satisfaction that the efficiency of such devices reduces the need for customer
service hours or CSR personnel).
(h) At least annually, any non-exempt MCS provider shall certify to the Council
that each customer service representative (CSR) has taken and passed an MCS
provider -implemented course designed to train CSRs to handle their jobs in a
courteous, efficient, and responsive manner.
(i) An MCS provider shall maintain at least one (1) toll -free and/or local telephone
number to accommodate normal business inquiries.
(j) An MCS provider shall maintain a separate twenty-four (24) hour toll -free or
local telephone number to facilitate calls concerning repair of equipment and
extended interruption of service. During any hours that the customer service
office is open, the MCS provider must have or make available in-house
personnel to address a customer's inquiries. During other hours, a telephone
may be manned by an automatic answering device, provided that the use of an
answering device or answering service still results in an initial phone call by
the MCS provider within sixty (60) minutes, in order to at least determine the
extent of the outage. The MCS provider shall not be required to make in -
person telephone contacts to subscribers at a rate which exceeds sixty (60) calls
per hour, and shall not be required to make such calls between the hours of
10:00 p.m. and 7:00 a.m..
(k) A non-exempt MCS provider shall have adequate staff and/or extension lines
(except during special marketing promotion periods, peak billing cycles, and
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service outages) in order to handle call to the general information number t*,
the following !' i
Eighty4ive percent (8501b) of all customer calls received in a year shall
be answered within three (3) minutes by a representative of the MCS
provider, or by a device that is capable of complaint/inquiry resolution;
and
(ii) The rate of abandoned calls shall be less than five percent (5%) over a
year's period of time. "Abandoned calls" shall in no event be deemed to
include calls in which the caller hangs up within forty-five (45) seconds
of making the call.
(1) With respect to the specifications listed in Subpararaph (k), it shall be the MCS
provider's responsibility to annually certify to the Council that the affected
MCS provider is meeting the minimal specifications.
(2) Preferential or Discriminatory Practices Prohibited.
(a) An MCS provider shall not, as to rules, regulations, rates, charges, provision of
service, or use of a provider's facilities and equipment, make, allow, or grant
any undue preference or advantage to any person, nor subject any person to
prejudice or disadvantage on the basis of age, race, creed, color, sex, national
origin, handicap, religious affiliation or location of residence.
(b) Consistent with Section 621 (a) (3) of the CCPA (codified at 47 USC 541 (a)
(3)), MCS providers shall not deny cable service, or the extension of cable
service, to any group of potential residential cable subscribers because of the
income of the residents of the local area in which such group resides.
(c) Subpragraph (a), however, does not prohibit an MCS provider from offering a
promotional or incentive discount rate or charge as long as the rate or charge
does not exceed three hundred seventy (370) days in length, This Subsection
does not prohibit an MCS provider from offering special incentive rates such as
one (1) month basic service free, if twelve (12) months of basic service are
paid in one (1) payment, or within a certain time frame.
(d) Subparagraph (a), also does not prohibit an MCS provider from denying service
based on location of residence, if that residence is outside the parameters for
line extension as detailed in a franchise agreement (if applicable).
(e) Subparagraph (a), also does not prohibit an MCS provider from denying service
to a subscriber who is more than thirty (30) days delinquent in the payment of
any periodic service, or special service bill, so long as the requirements for
disconnection (as outlined in this ordinance) have been satisfied.
CM
Subparagraph (a) also does not prohibit an MCS provider from implementing a
carefully designed no -frills service tieror service cluster for"lower!!1
and/or fixe! income individuals.
(g) Subparagraph (a) also does not prohibit an MCS provider from making
agreements or entering into multi -channel service agreements with multiple
dwelling unit owners (including hotel, motel, and mobile park owners) to
provide multi -channel service under a bulk billing or other type of arrangement.
(3) Use of Equipment, Return of Equipment, Security Deposits, and their Return.
(a) Prior to formally delivering any equipment, including auxiliary equipment (such
as a converter, input selector switch, or video control recorder) to a customer,
an MCS provider shall have tested a representative sample (at least one percent
(1%)) of such equipment to make sure that it is in proper working order.
(b) If needed for proper operation, or requested by a customer, an MCS provider
shall deliver to a customer, handwritten or typed instructions detailing the
proper use of rented, loaned, or purchased equipment. Unless required by
another Section of this ordinance, an MCS provider may comply with this
Section by delivering the manufacturer's instructions to a customer.
(c) An MCS provider is not required to seek a security deposit from a customer
for use or rental of the MCS provider's equipment.
(d) An MCS provider shall comply with any, and all, applicable State rules
concerning the imposition, retention, and return of security deposits.
(e) If the State and Federal statutes are silent on the security deposit for a
particular piece of equipment, then the MCS provider shall be prohibited from
charging any security deposit for equipment which exceeds the replacement
cost to the MCS provider.
(f) As a matter of consumer protection, an MCS provider shall be prohibited from
charging any security deposit for multi -channel service which exceeds twice the
basic monthly rate.
(g) An MCS provider may charge an appropriate security deposit (consistent with
Subparagraph (f) in those instances where a customer is re -connected after an
involuntary disconnection for non-payment or prior history of unsatisfactory
payment.
An MCS provider shall return a security deposit (together
earned) after the equipment is satisfactorily returned, or the subscriber
maintains a satisfactory payment history (which is determined as no payment
delinquencies within the preceding twelve (12) month period).
A customer shall maintain any equipment rented or leased from an MAK.
provider in good working order, and operate such equipment only in the
manner specified by the MCS provider or manufacturer of the equipment.
(j) A customer shall fully reimburse an MCS provider for any damage or loss to
an MCS provider's equipment that is due to the customer's failure to properly
maintain and operate such equipment.
(k) A customer shall be relieved from any responsibility for reimbursing an MCS
provider for equipment which malfunctions or does not operate due to a hidden
or latent defect in the equipment, or for equipment which fails to operate, or
improperly operates due to natural occurrences conditioned by the normal wear
and tear of such equipment, or for equipment damaged or destroyed by an act
of nature, and which is not covered by a customer's home or apartment
insurance policy.
(4) Service Inquiry Logs.
(a) An MCS provider shall be required to keep and maintain service inquiry logs,
subject to any limitations imposed by State or Federal law, including (for MCS
providers classified as cable operators) any subscriber privacy limitations
imposed by the CCPA.
(b) The purpose of the service inquiry logs is to assist the City in assessing (in the
aggregate) the type, degree, and resolution of customer service requests,
inquiries, and complaints.
(c) At a minimum, the service inquiry logs should contain the following:
(i) the time and date of initial receipt of any service request, inquiry, or
complaint, together with the time and date of initial response to that
service request, inquiry or complaint;
(ii) the nature of the service request, inquiry, or complaint;
(iii) the precise action taken by an MCS provider in order to resolve the
service inquiry, request, or complaint;
(iv) whether the service request, inquiry, or complaint was resolved by
allowing a credit or refund of some sort; and
(v) the area, location, or quadrant of the City where the service request,
inquiry, or request was generated.
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Council(d) In addition to any other right of inspection that the Council may possess, it
shall have the right to review and inspect a compilation of such logs. However,
the not • of or 1 t" i for
inquiryservice Egor is i' contained within service inquiryi•
that are otherwise protected from access, review, or inspection by State or
(e) This Section does not require MCS providers to maintain service inquiry logs
on scheduled installations.
(5) Restoration of a Subscriber's Property.
(a) At any time an MCS provider (in furtherance of its right to construct, operate,
and maintain a multi -channel system), disturbs the yard, residence, or other real
or personal property of a subscriber, such MCS provider shall ensure that the
subscriber's yard, residence, or other personal property is returned, replaced,
and/or restored to a condition that is sufficiently comparable to the condition
that existed prior to the commencement of the work.
(b) The costs associated with both the disturbance and the return, replacement,
and/or restoration shall be borne by the MCS provider. This Subsection also
requires the MCS provider to reimburse a subscriber or private property owner,
for any damage caused by the MCS provider, its subcontractor, or its
independent contractor, in connection with the disturbance of a subscriber or
private property owner's property.
(c) The types of acts specifically included in this Section are the following:
(i) removal of a subscriber's sod, lawn, plants, shrubbery, flowers, trees,
driveway, or fence to install, trench, repair, replace, remove, or locate
cable or other equipment of an MCS provider;
(ii) installation or removal of cable or other equipment of an MCS provider
within a subscriber's residence which requires drilling, excavating,
plastering, or the like on the part of the MCS provider;
(iii) temporarily relocating or moving a piece of personal property or a
fixture of a subscriber (such as a motor vehicle, fence, air conditioning
or heating unit, or the like), in order to perform some sort of
construction, maintenance, or repair on the multi -channel system; or
(iv) permanently removing an MCS provider's cable or equipment due to
either the revocation, termination, or non -renewal of a franchise (if
applicable), or the abandonment, withdrawal, or cessation, of multi-
channel service to any portion of the City.
(d) The requirements imposed upon the MCS provider extend to any subcontractor
tasksor independent contractor that the MCS provider might employ to perform the
outlined in this Section.
(e) In light of the foregoing, an MCS provider has the authority and responsibility
to diligently trim trees of a private property owner ('including a subscriber), but
only to the extent necessary to prevent the branches of the trees from coming
in contact with the MCS provider's wires and cables.
(6) Service Inquiries, Requests, Complaints, and Response Times.
(a) Except in times of a natural or man-made emergency, or an appointment
scheduled with the mutual consent of a subscriber, an MCS provider shall
respond to the service inquiries, requests, and complaints of subscribers, within
such MCS provider's normal business or service hours, and within the time
schedules detailed in Subparagraphs (b) through (g) below. Moreover, except
in emergency situations, an MCS provider shall inform the customer whether
the service call is scheduled for the morning, afternoon, or evening hours. If
the service call has to be cancelled or rearranged, then the MCS provider shall
make every effort to notify the customer as soon as possible, and shall (unless
the subscriber decides otherwise) re -schedule the service call for a time within
twenty-four (24) hours of the cancellation. The term "service call" as used in
this Section does not refer to initial installation.
(b) In the case of a signal or service interruption, an MCS provider shall respond
to, and make repairs as are necessary to resume the signal or service to the
subscriber within twenty-four hours (24) from the time the MCS provider first
received notification of the signal or service interruption.
(c) In the case of a "blank" or "no -picture" situation of any given level of billing
or service (except for pay -per -view events), an MCS provider shall respond to,
and make repairs as are necessary to return the multi -channel service within
twenty-four (24) hours from the time the MCS provider first received
notification of the "blank" or "no -picture" situation.
(d) In the case of a defective, improperly operating, or non -operating piece of
equipment, an MCS provider shall respond to, and make repairs as are
necessary to correct the problem within thirty-six (36) hours from the time the
MCS provider first received notification of the defective, improperly operating,
or non -operating piece of equipment.
(e) In the case of repair to a piece of equipment in a subscriber's residence, or
repair to the cable (coaxial, fiber or functional equivalent), the repair should be
completed, and the situation resolved, at the conclusion of the first service
visit. If the repair is not completed and resolved within three (3) visits, and if
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as a result of i •repair,•remains
visually or audibly detected degradation of a multi�channel signal, then the
MCS provider must immediately, and completely either replace all drop cable
(coaxial, fiber or •equivalent),or isolate and correct the sourceof
signal degradation i1! order to rectify the situation.
(f) In no case shall a subscriber's service request or inquiry go unresponded or
unattended to for more than one (1) work day from the time the MCS provider
first received notification of the service inquiry or request. Moreover, except in
emergency situations, all requests and inquiries shall be handled or corrected
within thirty-six (36) hours from the time the MCS provider first received
notification. If a cancellation of a service call occurs, then the MCS provider
shall re -schedule the call in a manner consistent with the guidelines expressed
in Subpargraph (a) above.
(g) In case of a dispute concerning the precise time that the MCS provider
received notification, or the precise circumstances surrounding the MCS
provider receiving the notification, or whether notification was received at all,
the Council shall reserve the right and authority to settle such a dispute.
(h) Provided, however, that the MCS provider may rank service calls in order of
severity. That is, total outages will take precedence over area outages; area
outages take precedence over a single home and multi -channel problems take
precedence over a single channel.
(7) Resolution of Complaints/Inquiries.
(a) An MCS provider is required to develop a comprehensive complaint/inquiry
resolution policy that is consistent with the rules and regulations outlined in
this ordinance.
(b) An MCS provider's complaint/inquiry resolution policy shall be reduced to
writing, and such policy shall be available upon request, to any person. In any
event, a subscriber shall receive notice of such policy in the manner that is
prescribed by this ordinance.
(c) The Council shall establish a neutral, third -party appeal process, to handle
complaints/inquiries that are not satisfactorily resolved at the MCS provider
level.
(d) An MCS provider's complaint/inquiry resolution policy shall contain at least
the following minimal standards:
(i) the initial response to a complaint/inquiry shall occur no later than
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twenty-four (24) hours after receipt of the complaint/inquiry;
(ii) every attempt will be made to resolve the complaint/inquiry within
seventy-two (72) hours after receipt of the complaint/inquiry;
(iii) complaints/inquiries that fall into the category of service inquiries shall
abide by the procedure set forth in this ordinance;
(iv) informing subscribers of the credit/refund policy which is consistent
with this ordinance, and any applicable State regulations; and
(v) informing subscribers of the billing disputes policy which is consistent
with this ordinance, and any applicable State regulations.
(8) MCS Providers Required to Maintain Sufficient Repair Parts and Sufficient Repair
Personnel.
(a) Except in times of natural or man-made emergency, an MCS provider shall, at
all times, have access to, and be able to secure, sufficient maintenance and
repair parts and equipment for the MCS system, so that the MCS provider can
respond to, and correct, all subscriber service interruptions within the time
periods specified in this ordinance.
(b) Having access to, and being able to secure sufficient maintenance and repair
parts and equipment, is necessary to promptly restore a subscriber's multi-
channel service, and avoid delays caused by having to obtain needed parts and
equipment.
(c) Except in times of natural or man-made emergency, or a strike (whose duration
has been less than seventy-two (72) hours), an MCS provider shall have
sufficient maintenance and repair personnel, so that the MCS provider can
respond to, and correct, subscriber service interruptions within the time periods
specified in this ordinance.
(d) An MCS provider shall annually certify to the Council that each service
technician has taken and passed an MCS provider -implemented course designed
to train service technicians to handle their jobs in a courteous, efficient, and
responsive manner. Also, the course should be designed to provide continuing
education to service technicians in changes in technology, repair/maintenance
procedures and related matters.
(e) Notwithstanding the other requirements and provisions contained in this
Section, an MCS provider shall maintain at least one (1) service technician on
call twenty-four (24) hours per day.
(9) New Installations; Connections --Regular, Promotional, Seasonal, Short -Term, Pay -Per -
View, and Menu -Driven; Re -Connections.
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installations, promotional, • or •r.l connections,
re-
connections, and upgrades of h. by • •,-
r. performed and completed days of •r • r,,
• provisions of •r .• of • not apply to pay -per -
view
(c) While an MCS provider may charge a customer for installing, connecting, or
re -connecting multi -channel service, such charge must be understood, and
approved by the customer prior to the installation, connection, or re -connection.
(d) In the case of a promotional, or seasonal connection, any limitations, or
restrictions must be explained prior to the promotional, or seasonal connection.
(e) An MCS provider may charge an appropriate re -connection charge or require a
security deposit, in those instances where a customer is re -connected after an
involuntary disconnection for non-payment or a prior history of unsatisfactory
payment. However, the re -connection charge or security deposit must be based
on the prior unsatisfactory payment history, or involuntary disconnection or the
customer, and not the location or address of the residence or structure.
(f) Downgrading a particular service level, or service cluster to a lower -priced or
less comprehensive service or cluster level shall not be considered a connection
to the lower -priced or less comprehensive level of service. An MCS provider
shall comply with any, and all, rules concerning downgrading.
(1) Disconnection for Dion -Payment.
(a) A subscriber shall not be considered delinquent in payment until at least forty-
five (45) days after the posting of the bill to the subscriber, and payment has
not been received by an MCS provider.
(b) Before disconnection of a subscriber's multi -channel service (either physically
or electronically) takes place, the following must occur:
(i) the subscriber must in fact be delinquent in payment of multi -channel
service; and
(ii) at least five (5) days have elapsed after a separate written notice of
impending disconnection has been personally served upon the
subscriber; or
(iii) at least eight (S) days have elapsed after mailing a separate written
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noticeof i^ t s disconnection t tsubscriber; or
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f. . elapsed after the subscriberhas f.t
for or, refused to accept, a separate written notice of impending
(c) The written notice of disconnection must expressly and clearly state the amount
that is owed by the subscriber to an MCS provider, the minimum amount
required to be paid to avoid disconnection, and the date and place where such
payment must be cfi.
(d) Disconnection of service must occur both on a normal service day, and within
normal business hours of an MICS provider, unless the subscriber is given the
opportunity to pay the full amount of the past due account.
(e) An MICS provider who physically retrieves its equipment (including converter,
remote control unit, or digital audio tuner), from a subscriber, must do so
within both a normal service day and normal service hours of an MICS
provider.
(f) Receipt of a "bad check" from a subscriber, in response to a written notice of
disconnection, does not constitute payment, and the affected MICS provider
need not give the subscriber further notice prior to disconnecting multi -channel
service.
(g) An MCS provider may add a reasonable collection charge to the subscriber's
bill if the applicable provisions of this ordinance, and any applicable State
regulations, are followed.
(h) Any refund due a subscriber after such a disconnection shall be made within
sixty (60) days of the disconnection for non-payment.
(2) Voluntary Disconnections and Downgrades.
(a) At any time, a subscriber who does not have a separate contract with the MICS
provider may request that a particular service tier, service cluster, menu -driven
program/service, pay channel, premium channel, informational service, or the
entire multi -channel service be disconnected.
(b) Any contract for service must be a separate, individual document requiring the
subscriber's signature and shall not merely be on the back of a work order or
other document.
(c) Where provided by an MCS provider, a subscriber may request a downgrade
from . particular level is service to a less comprehensiveof or
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t From the date that such . subscriber makes such a requestfor .
disconnection or downgrade,provider sh. I. o
(72) hours or three (3) service days, whichever is longer, to disconnect or
downgrade the service tier, pay channel, premium channel, informational
or multi-channelmulti-channel service. In the event that .1 MCS provider does
not disconnect or downgrade service within seventymtw•'hours,
subscriber's obligation to pay for such service shall cease, or in the case of a
downgrade, a subscriber's obligation to pay for the more comprehensive and/or
higher priced service shall cease.
(e) For a service tier, service cluster, menu -driven service, premium channel or
informational service which is voluntarily disconnected, a subscriber shall pay a
pro rata share of the monthly rate for such service tier, service cluster, menu -
driven service, premium channel or informational service.
(f) Once a valid connection to a menu -driven program, or a pay -per -view event
occurs, then the MCS provider may collect the full advertised or quoted rate,
should the customer then attempt to disconnect the menu -driven program, or
pay -per -view -event.
(g) No separate disconnect or downgrade charge may be passed onto a subscriber
if it chooses to take advantage of a lower -priced service tier/cluster or an
optional service tier/cluster, if the MCS provider does not have to make a trip
to the subscriber location to preform a change to a lower level of service.
However, to prevent subscriber abuse of this voluntary disconnection, or
downgrade policy, a subscriber shall be charged a minimum one (1) months
full rate for any one service tier/cluster which is disconnected and/or
downgraded at least three (3) times within a span of one hundred eighty (180)
days.
(h) If, however, an MCS provider's equipment is, or has been damaged by a
subscriber, prior to such disconnection, then the MCS provider may charge the
subscriber with the entire cost for such damage, provided that the MCS
provider notify the subscriber within thirty (30) days of the disconnection. A
subscriber shall not be required to pay for equipment failure, if the
circumstances fall within the normal wear and tear guidelines established in
this ordinance.
(i) Any refund due a subscriber after disconnection (both for non-payment and
voluntary disconnections) shall be made within sixty (60) days after such
disconnection. This Subsection specifically includes the situation where a
subscriber voluntarily disconnects service but is entitled to a refund as a result
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of a service outage that exceeds eight (8) hours in duration. In such case a
subscriber will also receive any refund due as a result of the service outage
w 'thin 60 days after the voluntarily disconnection.
(j) In no event will this Section be viewed as abridging the rights and remedies
afforded by the subscriber complaint/inquiry resolution process outlined in this
ordinance.
(1) An MCS provider shall abide by any, and all, subscriber privacy rules or regulations
of the Federal, or State governments.
(2) An MCS provider shall specifically abide by, and comply with, any subscriber privacy
protection requirements and procedures listed in Section 631 of the CCPA (codified at
47 USC 551).
11111 111 J I III III y' i I I
(1) The Council declares that as part of its right to establish multi -channel customer
service guidelines, it has the duty to ensure continuity of multi -channel service for all
subscribers. In that light, the Council also determines that it may take appropriate
measures in order to ensure that no portion of the City is threatened or faced with a
disruption, interruption, or discontinuance of multi -channel service due to the actions
of any MCS provider.
(2) In addition to the principles and ideals enumerated in Paragraph (1) above, the Council
also expresses that its policy covers the following.
(a) to provide for continuity of multi -channel service in the event of acquisition by
the City;
(b) to provide for continuity of service in the event of a proposed abandonment,
withdrawal, or cessation of multi -channel service by an MCS provider;
(c) to provide for continuity of service in the event of revocation, termination, or
non -renewal of a franchised MCS provider's franchise;
(d) to provide for continuity of service in the event that a transaction occurs that
affects the ownership or control of the MCS provider, such as an assignment,
sale, transfer, or merger;
(e) to provide for continuity of service in the event of an expiration of a franchise;
(f) to prevent disruption of multi -channel service which would provide a hardship
on those subscribers who rely on a multi -channel system as their primary or
secondary source for information; and
(g) to prevent the interruption or cessation of multi -channel service which would
disrupt or eliminate the diversity of programming choices enjoyed by
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subscribers of a multi -channel system, and thereby restricting their ability to
receive information.
(3) In any situation (including those mentioned above), which threatens the City and
subscribers with the loss or interruption in the continuity of multi -channel service, then
the MCS provider shall provide the Council with at least forty-five (45) days notice
(except in extreme circumstances) prior to the effective date of any action which
would cause a loss or interruption in the continuity of multi -channel service. The
purpose of the notice is to apprise the Council of the possibility of such loss or
interruption in the continuity of multi -channel service, so that it might explore its
options and take appropriate measures.
(4) Whenever any situation occurs (including those mentioned above) which threatens the
City and subscribers with the loss or interruption in the continuity of multi -channel
service, then the Council may direct the MCS provider for a period of up to twenty-
four (24) months to do everything in its power to ensure that all subscribers receive
continuous, uninterrupted multi -channel service of the same quality, mix, and level(s)
regardless of the circumstances.
(5) During the interim period, the Council shall work with the MCS provider in order to
secure a new multi -channel system owner, or rectify the problem, so that the threat of
loss of continuity is removed at the earliest possible instance.
(6) During any interim period in which the MCS provider continues to provide multi-
channel service to subscribers, the MCS provider is entitled to all revenues collected,
except any sums owed (including franchise fees, alternative user charges, and taxes) to
the City or to other persons.
(7) In the event that the threat of loss of continuity is not resolved within twenty-four (24)
months, then the Council may extend the interim period on a month -to -month basis
until the situation is satisfactorily resolved. Also, in such a circumstance, the Council
may adopt any emergency rules or procedures which will ensure that the subscribers
will receive continuous, uninterrupted multi -channel service of the same quality, mix,
and level(s).
(8) Nothing in this Section should be construed as requiring an MCS provider to operate a
multi -channel system at a continued financial loss (due to bankruptcy or insolvency)
for an extended period of time. In such case, while the Council may require continuity
of service, it must lift such requirement as soon as the threat of loss of service is
removed. Consequently, the Council must take appropriate steps to both ensure the
continuity of service, and minimize the financial loss incurred by the MCS provider if
the abandonment, cessation, or withdrawal is caused by bankruptcy, or insolvency.
JO Continued Use of Individual Antennas Protected.
Council
(2) It is also noted that no person shall be penalized or fined (through either a home sales
contract, deed of restrictive covenants, or other type of agreement) for failing or
refusing to receive multi -channel service, or physically connecting to a multi -channel
system.
K. Construction of Good Qualitye
During any phase of construction, installation, maintenance, and repair of the multi -channel
system, the MCS provider shall use materials of good and durable quality and all such work
shall be performed in a safe, thorough, and reliable manner.
(1) All wires, conduits, cable (coaxial, fiber, or functional equivalent), and other property
and facilities of an MCS provider shall be so located, constructed installed, and
maintained so as not to endanger or unnecessarily interfere with usual and customary
use, traffic and travel upon the streets, rights -of -way, easements, and public ways of
the City.
(2) In the event an MCS provider's system creates a hazardous or unsafe condition or an
unreasonable interference with property, then at its own expense such MCS provider
shall voluntarily, or upon the request of the Council, remove that part of the system
that creates the hazardous condition from the subject property.
(3) An MCS provider shall not place equipment where it will interfere with the rights of
property owners or with gas, electric or telephone fixtures, or with water hydrants or
mains, or with wastewater lift stations, or any other service or facility that benefits the
City's or its residents' health, safety, or welfare.
(4) An MCS provider, at either its own expense or that of a private contractor, shall
protect rights -of -way, easements, and support or temporarily disconnect or relocate in
the same street or other public way, any property of such MCS provider when
necessitated by reason of:
(a) traffic conditions;
(b) public safety;
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(c) a street closing;
(d) street construction or re -surfacing;
(e) change or establishment of street grade;
(f) installation of sewers, drains, water pipes, storm drains, lift stations, force
mains, power or signal lines; or
(g) an improvement, construction or repair related to the City's or its residents
health safety, or welfare.
(5) It shall be the responsibility of an MCS provider (acting alone or in conjunction with
another person) to locate and mark or otherwise visibly indicate and alert others to the
location of its underground cable (coaxial, fiber or functional equivalent) before
employees, agents, or independent contractors of any entity install cable in the
marked -off area.
(6) An MCS provider shall, on the request of any person holding a building moving
permit, temporarily remove, raise or lower the cable wires to allow the moving of the
building. The expense of temporary removal shall be paid by the person requesting it,
and such MCS provider may require payment in advance. The affected MCS provider
shall be given not less than twenty-one (21) days notice of a contemplated move to
arrange for temporary wire changes.
(7) For any new installations occurring after the effective date of this ordinance, and at
the time that an MCS provider rebuilds or upgrades the multi -channel system, all trunk
or feeder cable (coaxial, fiber, or functional equivalent) shall be placed underground,
when and if utilities are placed underground. Further, where both power and utilities
are presently underground, multi -channel system cable shall also be placed
underground.
(8) It shall be the responsibility of any MCS provider to comply with the most current
FCC technical standards.
MO Franchised MCS Provider's Duty to Remove Franchised Properties from the
Public Streets. I
(1) This Section is applicable to any MCS provider required to maintain a franchise to
operate within the City.
(2) Whenever the following occurs°
(a) a franchised MCS provider ceases to operate all, or part, of the multi -channel
system for a continuous period of six (6) months;
(b) a franchised MCS provider ceases and fails to construct the multi -channel
system outlined in the application, or proposal for renewal, or renewal
franchise agreement;
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forth(c) the Council elects not to renew the franchise pursuant to the provisions set
forth, in this ordinance; or
(d) the franchised MCS provider's franchise is revoked pursuant to the provisions
set • t
Then --Unless the City or another MCS provider uses such multi -channel system, under
the continuity provisions outlined in this ordinance, the affected franchised MCS
provider shall promptly remove its multi -channel system property from the streets,
public ways, and private property located within the City.
(3) If not removed voluntarily by a franchised MCS provider, then the Council may notify
such franchised MCS provider that if removal of the property is not accommodated
within two hundred seventy (270) days, or substantial progress towards removal is not
made within two hundred ten (210) days, then the Council may direct officials or
representatives of the City to remove such franchised MCS provider's system property
at that franchised MCS provider's expense. The performance and/or construction bond,
irrevocable letter of credit, cash deposit, or full faith and credit guarantee required as
set forth in this ordinance shall be available to pay for such work.
(4) If officials or representatives of the City remove a franchised MCS provider's system
property, and such franchised MCS provider does not claim the property within ninety
(90) days of its removal, then the Council may take whatever steps are available under
State law to declare the property surplus, and sell it, with the proceeds of such sale (if
permitted by State law) going to the City.
(5) When such franchised MCS provider removes its multi -channel system property from
the streets, public ways, and private property located within the City, the franchised
MCS provider shall, at its own expense, and in a manner approved by the Council,
replace and restore such public or private property in as good a condition as before the
work causing the disturbance was done,
(1) Methods of construction, installation, maintenance repair of any multi -channel system
shall comply with the most current editions of the National Electrical Safety Code, and
the National Electric Code, as affects the construction, installation, and maintenance of
electrical supply and communication lines and attachments and supports. To the
extent that these are inconsistent with other provisions of a franchise, or State, or local
law, then the state or local law shall apply.
(2) All construction, installation, maintenance, and repair shall treat the aesthetics of the
property as a priority, shall not substantially affect the appearance of the structure, and
shall not be installed on the bias across the property or any side of a residence or
other structure without the property owner's permission.
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(3) All underground drops shall follow (to the greatest extent possible) property lines, and
cross property only at right angles, unless otherwise permitted by the property owner,
required due to the physical characteristics of the subsurface, or required under City,
State, or Federal rules.
(4) For existing multi -channel system construction, installation, and repair, the provisions
of Paragraphs and 4 shall •-.•!ly only !e:' . scheduled upgrade •... rebuild
of provider's i system is commenced. For newly served
areas, 1 provisions of Paragraph and •Ishall apply •.::the timeof r
construction and/or installation.
An MCS provider shall obtain, at its own expense, all permits and licenses required by law,
rule, regulation, or ordinance, and maintain the same, in full force and effect, for as long as
required.
,1111111111111111111111 t t 1
(1) Safety Requirements
(a) The Council requires that the MCS provider's construction, operation, and
maintenance of the multi -channel system meet certain threshold safety levels
which are designed to protect the public and lessen the likelihood of
interruption of multi -channel service.
(b) Consequently, the Council requires any MCS provider to adopt the following
safety requirements:
(i) emergency alert override activation in the manner set forth in this
ordinance;
(ii) minimum standby power as noted in this ordinance;
(iii) the provision of signal alert technology in the manner noted in this
ordinance;
(iv) implementing a periodic preventative maintenance program as set forth
in this ordinance;
(v) follow all FCC rules and regulations concerning maximum cumulative
leakage index (CLI) limits; and
(vi) comply with, and abide by, any construction, safety or fire codes as
noted in this ordinance.
(2) Provisions to Alert Subscribers in the Event of an Emergency; Standby Power.
(a) In order that subscribers may be alerted in the event of an impending,
imminent or actual, natural or man-made emergency, then all MCS providers
shall ensure that the multi -channel providing
all, or part, of the City is designed so as to permit an authorized official of the
City to override the audio portion of all channels, by touch4one phone (or
functional equivalent) from any location.
(b) In addition to any other requirements listed in this Section, an MCS provider
shall:
(i) designate a channel which will be used for emergency broadcasts of
both audio and video (this channel need not be solely used for
emergency broadcasts, and may in fact be used for any lawful purpose);
(ii) inform subscribers of the designated emergency channel on a periodic
basis (not less than twice a month);
(iii) maintain all channel video blanking capability to facilitate the needs of
hearing and sight -impaired customers;
(iv) test the emergency override system not less than once a month;
(v) cooperate with the City on the use and operation of the emergency alert
override system; and
(vi) develop a plan (with the City's concurrence) in order to provide
continuity of multi -channel service, and response to service calls in the
event of a natural or man-made emergency.
(c) As one method of providing continuity of multi -channel services in the event
of a natural or man-made emergency, an MCS provider shall, unless exempted
by the Council, have the capacity for (three) (3) hours of automatically
activated standby power on all trunk and feeder cable, and all headends, hubs,
and receive sites associated with the distribution of cable service to, and
throughout the City.
(3) Safety Alert Technology Requirements.
(a) The City may require an MCS provider, as a means of protecting the health,
safety and welfare of the public and of communicating with the public, who
utilizes a means of transmission that allows such, to provide a technology or
service that.
(i) provides effectively instantaneous access into potentially every home,
regardless of whether or not one subscribes to Basic cable service;
(ii) does not require that the television be turned on, or the volume turned
up to receive the message;
(iii) does not require that the resident be home at the time of transmission to
receive the message;
all
(iv) covers the entire range of human hearing;
(v) stores the message in case no one is home at the time;
(vi) has an emergency audio alert intended to awaken a sleeping individual;
(vii) can notify any one, or combination of discreet segments of the
population, without unnecessarily alarming the rest of the populace;
(viii) provides a different alert notification for emergency and non -emergency
situations.
(ix) is tied directly into the local office of the National Weather Service's
Site Selection weather warning service and standard weather radio
service.
(b) In the event the City chooses not to require the provision of the technology or service
the ROCS provider shall, reserve the bandwidth necessary for the provision of the
service for use by any third party designated or approved by the City.
(c) The City designates the necessary bandwidth as a form of Governmental Access and
as such may require the provision of the necessary bandwidth at no charge.
(d) The City requires the MCS provider to maintain the necessary bandwidth to fully and
completely cooperate with the City, and any third party provider of the service, in all
matters related to the provision of the service, including but not limited to:
(i) making the public aware of the availability of the service;
(ii) educating the public as to the benefits, value and use of the service;
(iii) the distribution and installation of any in -home device(s) needed for the
reception and use of the service;
(iv) the provision of the service to the public.
(f) The City may allow the operator to propose an alternative technology or service that
meets, to the extent possible, the capabilities set forth in Subparagraph (a).
(4) Implementation of a Preventive Maintenance Program.
(a) It shall be the duty of an MCS provider to devise and implement a periodic
preventative maintenance program for the multi -channel system in order to
ensure that there is no material degradation of the multi -channel system that
would affect the citizens' health, safety, and welfare, or negatively affect the
quality of multi -channel services being provided.
(b) The Council shall have the right of approval of any preventive maintenance
program. Within forty-five (45) days after the completion of any preventive
maintenance component test, the MCS provider shall prepare and submit a
written report (except for daily or weekly components, and tests which may be
submitted once a quarter) to the Council detailing the results of the tests
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conducted, and all items performed or addressed during the periodic preventive
maintenance program. Although not exhaustive, the following areas should be
included in a preventive maintenance program, and subsequent report:
(i) inspection and repair, if needed, of the headend;
(ii) inspection and repair, if needed, of the antenna tower;
(iii) requiring weather -proofing and protection of the antenna lead
connectors, and on any other exposed fittings;
(iv) requiring the conducting of signal leakage tests that are in accord with
FCC requirements;
(v) removal of tree roots, limbs, and branches that interfere with, or come
in contact with, the MCS provider's cable;
(vi) requiring the periodic servicing, testing, and calibration of the MCS
provider'sequiment including service vehicles, and field test equipment;
(vii) employing a status monitoring system to identify problems or situations
in which the multi -channel system electronics are operating outside pre-
programmed parameters;
(viii) testing of the emergency alert system to ensure that it will function
properly during an emergency situation,
(ix) testing of the safety alert system or technology, if provided;
(x) testing and recording of test data for all signals (audio and video) at the
headend and all system extremity points;
(xi) testing as required or allowed by Federal law or regulation; and
(xii) meet all operating perimeters as may be set, or allowed, by the FCC,
and as such may be changed or amended from time to time.
(5) Construction, Fire, and Safety Codes.
(a) An MCS provider shall construct, operate, maintain, repair, remove, replace, or
restore the multi -channel system in strict compliance with all current technical
codes adopted by the Council, the State, or the United States.
(b) The codes referred to specifically include, but are not limited to, construction,
fire and safety, and zoning codes.
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i t ADDITIONAL PROVISIO]
LiabilityAo r
The City may require an MCS provider to secure and maintain, for as long as it
provides multi�channel service to subscribers, public liability, property damage
• umbrella coverage.
(2) An MCS provider's public and personal liability and property damage insurance policy
shall specifically include the City, the Mayor, the Council as additional insureds.
(3) The public and personal liability and property damage insurance policy shall be issued
by an agent or representative of an insurance company licensed to do business in the
State, and which has one (1) of the three highest or best ratings from the Alfred M.
Best Company.
(4) The public liability and property damage insurance policy shall contain an
endorsement obligating the insurance company to furnish the Council with at least
thirty (30) days written notice in advance of the cancellation of the insurance.
(5) Renewal or replacement policies or certificates shall be delivered to the Council at
least fifteen (15) days before the expiration of the insurance which such policies are to
renew or replace.
(6) Before a multi -channel system provides multi -channel service to subscribers, the MCS
provider shall deliver the policies or certificates representing the insurance to the
Council, and each policy or certificate delivered shall be accompanied by evidence of
payment of the premium thereon.
(1) An
MCS provider shall keep complete
and accurate books
of accounts, and records of
the
business and operations under, and
in connection with,
the MCS system.
(2) The Council shall have the right to review (either by mail or at the MCS provider's
local office) all records (needed for the administration enforcement of this ordinance
or any franchise) on seven (7) days written notice, unless specifically exempted by the
Council. Such review, unless mutually agreed upon, or judicially ordered, should occur
within the MCS provider's regular office hours.
(3) The Council shall have the right to hire, at its own expense, an independent certified
public accountant, or other business or financial expert, to review the books and
records of an MCS provider. If after a financial audit, it is determined that the MCS
provider has under paid amounts owed to the City (in excess of two percent (2%)),
1,-1 the City may t provider tt reimburse the City for1` actual cost
of the audit. Note, however, that absent fraud, all audits shall be binding on the City.
Further, the MCS provider shall only be required to maintain the financial records
necessary to verify franchise
A false entry into the bilk', and/or records of an MCS provider, .•` by an MCS
provider, of a material and substantial fact shall constitute a material violation of this
ordinance. However, an erroneous entry, made in good faith, shall not constitute a
w aterial ! 1!t !' 'i • 1' faT
(5) An MCS provider, at the local office shall keep complete and accurate books and
records of the key aspects of the multi -channel system's operation for at least the
preceding three (3) years in such a manner that all matters pertaining to the City,
which can be easily produced and/or verified at the City's request. Also, the MCS
provider shall keep, at its local office and shall make available and provide upon
request, any other applicable records and information that may be required by any
other Federal or State agency having jurisdiction over MCS providers.
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(1) Within ninety (90) days after this ordinance becomes effective, and thereafter, at least
once every twelve (12) months, an MCS provider shall submit a list to the Council, or
designee, of files, reports, records, data, or other information that the MCS provider
periodically files with the FCC, or another federal or State agency. If the MCS files a
non -periodic or non -regular file with the FCC, or another federal or State agency, then
the MCS shall (within sixty (60) days of that filing), notify the Council of such federal
or State filing. As part of a performance evaluation, or for any legitimate matter
related to the administration of an MCS provider (or if applicable the MCS provider's
franchise), the Council may specifically request that it be provided with any, or all
listed reports, records, data, or other information, that were originally filed with the
FCC, or another Federal or State agency. However, unless specifically authorized by
the State, an MCS provider shall not be required to provide to the Council, any State
or Federal tax returns, or any documents (inclusive of all above -referenced categories)
exempted under federal privacy laws, including Section 631 of the CCPA (codified at
47 USC 551).
(2) In addition to the requirements noted in the paragraph above, an MCS provider shall
timely submit those reports, statements, and logs required by this ordinance, including,
but not limited to, the following:
(a) a periodic gross revenue statement in the manner set forth in this ordinance;
(b) a periodic certification that answering of phones is meeting the specifications
listed in this ordinance;
(c) preventive maintenance reports in the manner set forth in this ordinance and
(d) any other reports or information required by another Section of this ordinance,
or by the Council which are necessary to protect the health, safety, and welfare
of the citizens of the City.
Do e Council's Policy with Respect to Deports and Records.
(1) The Council recognizes that advances in technology, and the adoption and application
of a multi -channel laws, rules, regulations, and court decisions may have a profound
effect and impact on an MCS provider in any given year.
(2) Consequently, it is incumbent that the Council take measures to reduce the risk that
multi -channel service or the multi -channel system will be adversely affected in any
given year.
(3) Therefore, the evaluation of legal, technical, financial, and character qualifications of
an MCS provider is viewed as a constant undertaking on the part of the City. As a
result, the Council requires that the operator maintain and retain all records and reports
necessary for the Council to determine compliance with the obligations imposed on an
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MCS provider, and to determine the MCS provider's (legal, technical, financial, ant4
qualifications.
SpecificAdditional Public, / I i .' and Governmental Rules for
Council
(a) If, at any time, ninety percent (90%) of the total time allocated for any
required PEG channel is consistently used five (5) days a week for a
period of six (6) months, then the MCS provider shall provide an
additional PEG channel.
Fe L I ,a'ObjectiveRelates to the Provision of Broad Categories of
f•I Programming.
(1} The Council recognizes that under Section 624 of the CCPA (codified at 47
USC 544), the legal power of local government is severely restricted in
requiring and/or demanding that particular video programming or other services
be provided to subscribers over the multi -channel system.
(2) Nevertheless, the Council recognizes that it should strive to ensure that its
citizens receive the widest, and most diverse selection of video programming
possible. Consequently, for those MCS providers required to maintain a
franchise, the Council states as its objective to such franchised MCS providers,
that the provision of video programming to subscribers should include the
following broad categories:
(a) local broadcast stations;
(b) two (2) distant carriage signals, or satellite -fed broadcast stations;
(c) PEG programming on the lowest offered and/or available tier;
(d) sports programming services (regional and/or national);
(e) news, information, or public affairs/interest programming services;
(f) financial/consumer-oriented programming services;
(g) scientific and/or cultural programming services;
(h) children's programming services; and
(i) ethnically sensitive programming services.
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Consistent with Section 633 of the CCPA (codified at 47 USC 553), no person
shall intercept or receive, or assist in intercepting or receiving any
communications service offered over rmultiwchannelsystem,unless specifically
authorized to do so by an MCS provider, or as may otherwise be specifically
authorized by
(2) For the purpose of this Section, the term "assist in intercepting or receiving"
shall include the manufacture or distribution of equipment intended by the
manufacturer or distributor (as the case may be) for the unauthorized reception
of multi -channel service as noted in the paragraph above.
(3) Without securing permission from an MCS provider, or making payment to an
MCS provider, then no person shall be authorized to make any connection,
whether physically, electrically, acoustically, inductively, or otherwise, with any
part of an authorized or franchised multi -channel system for the purpose of
receiving or intercepting, or assisting others to receive or intercept any cable
service provided lawfully by the MCS provider.
(4) No person shall be authorized to willfully tamper with, remove, or damage any
cable, wires, equipment, or facilities used for the distribution of multi -channel
services.
(5) Any, and all, MCS providers are encouraged to work with the Council in
developing and implementing a plan designed to control and eliminate the
unauthorized reception of certain cable services within the City.
(1) Both the Council and each non-exempt MCS provider shall provide the other
party with the name and address of the contact person designated to receive
notices, filings, reports, records, documents, and other correspondence. All
notices shall be delivered to each party's contact person by certified mail,
return receipt requested, personal service with a signed receipt of delivery, or
overnight with receipt verification. All other filings, reports, records,
documents, and other correspondence may be delivered by any permissible
means including, but not limited to: facsimile transmission ("faxing") personal
service; overnight mail or package delivery; or delivery via cable. The delivery
of all notices, reports, records, and other correspondence shall be deemed to
have occurred at the time of receipt (unless otherwise designated by State law).
(2) If the MCS provider is required to maintain a franchise, then the designation of
such contact person for notice purposes, may be contained within a franchise
agreement.