17-7 REGULATION AND EVALUATION OF FRANCHISE.

a. Evaluation of System and Services . The Town and operator shall periodically hold a comprehensive evaluation session in accordance with procedures set forth in this article. The purpose of this is to evaluate the cable system and services, to provide for technological, economic and regulatory changes occurring in the cable industry, to promote the maximum degree of flexibility in the cable system, and to achieve a continuing, advanced, modern system responsive to community needs and desires.

b. Frequency of Evaluation Sessions . The first evaluation session shall be held on or about the third anniversary date of the award agreement unless continued to a later date by the Town. Subsequent evaluation sessions shall be held at the request of the Town. No more than one (1) session may be required during any three (3) year period, unless required to consider a request for renewal or extension of the franchise. A dispute arising between evaluation sessions is subject to the dispute resolution procedure in subsection 17-7.3.

c. Report . The operator shall prepare a written report before the evaluation session. At least one hundred twenty (120) days before the scheduled session date, the Town shall provide the operator a list of the information to be included in the report. Topics for the report may include the following:

1. A summary of system operations during the period since the franchise award or the last report, including:

• (a) Services changed or added;

• (b) Rate changes for any services;

• (c) Total number of subscribers each year and number of subscribers added and discontinued in each year;

• (d) Level of subscriber complaints and system malfunctions and success in resolving them;

• (e) Support and assistance provided to community service television operations;

• (f) Operational compliance with technical requirements;

(g) A financial statement for each year during the period, and a list of changes in the company’s officers, directors, partners or stock-holders and equity investors holding a five (5%) percent or greater share; and

• (h) Copies of operations FCC Forms 325 and 326 for each year of the period.

2. A detailed description of new or developing cable technologies and services, including a list of these then being provided to other cable systems in the United States not currently available in this system, a statement regarding the operator’s intention for providing them and the basis for any contention that they are not feasible or desirable in this system.

The operator shall submit its report at least sixty (60) days in advance of the scheduled evaluation session.

d. Evaluation Session .

1. The evaluation session shah be open to the public and announced in a newspaper of general circulation in the service area. The operator shall cooperate in providing cablecast notice, repeated several times throughout the viewing day for no less than three (3) consecutive days, and if required by the Town shall at its own expense, mail notice to all subscribers at least ten (10) working days before the session date.

ion shah be open to the public and announced in a newspaper of general circulation in the service area. The operator shall cooperate in providing cablecast notice, repeated several times throughout the viewing day for no less than three (3) consecutive days, and if required by the Town shall at its own expense, mail notice to all subscribers at least ten (10) working days before the session date.

2. Topics which may be discussed at the evaluation session include, but are not limited to: service provided, rates charged, system performance, programming offered, customer complaints, territory to be added to service area, amendments to applicable ordinances and agreements, and developments in legal or regulatory constraints. Town operator and members of the public may select additional topics for the agenda.

3. Within sixty (60) days after the conclusion of an evaluation session, the Town shall issue a report if it finds the cable system operations fail to meet the requirements of this chapter or the award agreement, or are deficient in meeting community needs and desires.

e. Deficiencies . If the Town finds cable operation deficiencies which have violated this chapter or the award agreement shall promptly correct each violation.

f. Changes . If the Town seeks an addition to or change in cable system services, the operator shall, within one hundred twenty (120) days after receipt of the Town’s findings, submit an analysis of the requested modification, including a description of the means for implementation and documentation of all associated costs, including charges to subscribers which would result. The Town and the operator shall then begin good faith negotiations in order to arrive at a mutually

acceptable plan for the provision of the desired services within a reasonable time and at a reasonable cost.

If the negotiations do not result in an agreement between the parties within sixty (60) days after submission of the operator’s feasibility analysis, either party may require the matter(s) to be submitted to arbitration in subsection 17-7.4.

(Ord. #23-83, §1)

Not more than once each year, the Town may require the operator to submit evidence of a comprehensive test of the cable system’s technical performance and its compliance with technical standards of the franchise.

Where the test results, a pattern of subscribers complaints or other evidence casts doubt upon the quality or reliability of cable system performance, the Town may require that special tests, limited to the matter in question, be conducted at the operator’s expense. The Town may require that these special tests be supervised by a professional engineer approved by the Town at the operator’s expense. The engineer shall sign the record of each special test and forward it to the Town with a report interpreting the result and recommending action to be taken.

The operator shall cooperate in performing the testing, and shall submit any required report within thirty (30) days after testing.

(Ord. #23-83, §1)

a. Information to Subscribers . The operator shall inform subscribers of the right to bring unresolved problems to the Town’s attention.

b. Operator Response Hearing . If, during the period between evaluation sessions a problem or dispute arises concerning cable system operations, the Town may require the operator to submit a written response to include a plan for resolution of the problem or correction of the violation. The Town shall allow the operator a reasonable period of time within which to prepare its response, not to exceed thirty (30) days. Thereafter, the Council may hold a hearing to consider the matter and may require the operator to furnish notice of the hearing to affected subscribers at the operator’s expense.

If, after the hearing, the Council finds that a franchise violation occurred, it may impose a penalty under this chapter and the operator shall promptly correct the violation.

c. Delegation of Power . The Council may delegate all or part of its review powers under this chapter to a Cable Review Board Commission or to a Town employee. If these powers are delegated, either the operator or a member of the public who is dissatisfied with the decision of Town’s representative may appeal the decision to the Council for hearing and determination under the procedure set forth for appeals of decisions. The Council may accept, reject or modify the decision of Town’s representative, and may adjust, settle the controversy or cancel a charge arising from cable system operations or from a provision of this chapter.

(Ord. #23-83, §1)

a. Arbitration of a matter subject to arbitration under this chapter shall be conducted by a committee of three (3) arbitrators: one (1) appointed by Town, one (1) appointed by operator, and the third appointed by the other two (2) arbitrators, or failing agreement between them, by the American Arbitration Association.

b. Arbitration may be initiated by either party by giving the other written notice and specifying in the notice the name of the arbitrator appointed by the initiating party. The other party shall notify the initiating party in writing of the name of its arbitrator within seven (7) days after receipt of notice from the initiating party. If the two (2) arbitrators appointed are unable to agree upon a third arbitrator within seven (7) days thereafter, they shall immediately request the American Arbitration Association to appoint a third arbitrator, and shall request that the appointment be made within seven (7) days.

c. Hearings on a matter submitted for arbitration shall begin within three (3) business days after appointment of the third arbitrator, shall be conducted within the franchise area, and shall be conducted in accordance with the rules of the American Arbitration Association.

d. The hearings shall be conducted expeditiously and an award agreed to by a majority of the arbitrators is final and binding upon all parties. Judgment upon the award may be entered by a party in the court having jurisdiction.

e. Where in the judgment of a majority of the arbitrators either party’s claim or defense is frivolous, costs of the other party including attorney’s fees, may be awarded to the other party and included in the final award. Failing an award, each party shall bear its own costs of arbitration and shall share equally the cost of the third arbitrator.

(Ord. #23-83, §1)

17-7.5 Franchise Violations.

a. Remedies, Generally . If the operator violates provision of this chapter or the award agreement, or fails to comply with a requirement in a timely manner, the Town may do any of the following:

1. Assess monetary penalties as set forth in this subsection;

2. Require the operator to cure violations before increasing any rates or charges to subscribers;

3. Terminate the franchise for cause, as set forth in subsection 17-5.3.

The exercise of these remedies is not a waiver by the Town of any other remedy it may have, including the right to recover for damages, losses, costs and expenses, including attorney’s fees arising from a franchise violation. This provision for recovery of damages is in addition to the Town’s right to apply its remedies under Section 17-10.

b. Procedure . If the Town believes the operator has violated this chapter or the award agreement, or an applicable Federal, State or local regulation, the Town may make a written demand on the operator to correct the violation. If the violation is not corrected within a reasonable time as set forth in the demand, the Town shall consider the matter at a public hearing. The Town shall serve the operator with written notice of the matter to be considered and the time and place of the hearing at least ten (10) days before the scheduled date of the hearing. At the time of the hearing the operator and any interested persons shall be heard. The Council may determine at that or subsequent meetings an appropriate course of action for enforcement or termination of the franchise.

c. Immaterial Breach . In order to provide the Town with some remedy for immaterial or minor breaches other than expensive and time consuming legal actions, the Town may impose a fine on the operator for an immaterial breach of the franchise.

If, after a hearing as provided for in paragraph b. above, the Council determines that the operator has violated a provision of this chapter or the award agreement, it may impose a fine not to exceed the amounts set forth in this paragraph. The actual amount of the fine shall be based upon the significance of the violation, its impact on subscribers, its duration, whether the violation was beyond the operator’s control, and other pertinent circumstances.

These penalties are in addition to any rate adjustments to which subscribers may be entitled.

1. Construction Violations. For failure to meet construction requirements, to perform construction work within the required time periods, or to begin service to subscribers in a timely manner, the Town may impose a fine of up to five hundred ($500.00) dollars a day, or up to two thousand ($2,000.00) dollars a day for construction delays exceeding six (6) months.

2. Performance Violations. For failure to meet standards of service, maintenance, operation or administration, or for failure to do so in a timely manner, the Town may impose a fine of up to two hundred fifty ($250.00) dollars per business day. Violations subject to this provision include, but are not limited to: failure to provide required services; failure to provide timely repairs; service interruptions without just cause; unauthorized disconnection of subscribers; failure to give required notice or to maintain and permit inspection of records as required; violations of technical standards, including required signal carriage; and failure to comply with any regulatory requirements, including payment of sums owed to the Town.

d. Material Breach . The quality and quantity of immaterial breaches in and of themselves may amount to a material breach, in which event the franchise may be terminated.

e. Payment of Fine . Town shall give the operator written notice of a fine assessed under subsection 17-7.5c. and the operator shall pay the fine within thirty (30) days after receipt of notice, or, if the operator requests arbitration under subsection 17-7.4, within thirty (30) days after receipt of notice of an arbitration award in favor of Town.

If the operator does not pay a fine within the required thirty (30) days, interest on amount of fine accrues monthly at the rate of one (1%) percent per month. If the Town brings suit to enforce the payment of a fine and prevails, the operator shall pay attorney’s fees and costs in addition to the fine and interest thereon.

(Ord. #23-83, §1)