Dorris Municipal Code Ch. 5.08 Catv Francidses

Sections: 5.08.010 5.08.020 5.08.030 5.08.040 5.08.050 5.08.060 5.08.070 5.08.080 5.08.090 5.08.100 5.08.110 5.08.120 5.08.130 5.08.140 5.08.150 5.08.160 5.08.170 5.08.180 Franchise to operate. Uses permitted by grantee. Duration of franchise. Franchise payments. Limitations of franchise. Rights reserved to the city. Permits, installation and service. Location of property of grantee. Removal and abandonment of property of grantee. Faithful performance bond. Indemnification of city. Inspection of property and records. Operational standards. Grantee to maintain office. Refusal of service prohibited. Application for franchise. Franchise renewal. Acceptance and effective date of franchise.

An exclusive or nonexclusive franchise to construct, operate and maintain a community antenna television system (hereinafter CATV) within all or any portion of the city may be granted by the city to any person, firm or corporation, whether operating under an 59 existing franchise or not, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter. (Ord. 167 § I, 1980)

A. Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the city, and for that purpose to erect, install, con- struct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along any public street, such poles, wires, ca- ble, conductors. ducts, conduit, manholes, am- plifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system: or corporations, includ- ing but not limited to any public utility or other grantee franchised or permitted to do business in the city. B. The grantee may make a charge to subscribers for installation or connection to its CATV system and fixed monthly charge as filed and approved as provided in this chapter. No increase in the rates and charges to subscribers as set forth in the schedule filed and approved with grantee's application may be made without the prior approval of the city expressed by resolution. (Ord. 167 § 2, 1980)

A. No franchise granted by the city under this chapter shall be for a term longer than fif- teen (15) years following the date of accep- tance of such franchise by the grantee or the renewal thereof. B. Any such franchise granted under this chapter may be terminated prior to its date of expiration by the city in the event that the city

shall have found, after thirty (30) days' notice of and proposed tennination and public hearing that:

1. The grantee has failed to comply with the provisions of this chapter, or has, by act or omission, violated any tenn or condition of any franchise or pennit issued hereunder; or
2. Any provision of this chapter has become invalid or unenforceable and the city further fmds that such provision constitutes a consideration material to the grant of the franchise; or
3. The city acquires the CATV system property of the grantee. (Ord. 167 § 3, 1980)

A. Any grantee granted a franchise under this chapter may be required to pay to the city, during the life of such franchise, a sum equal to zero percent of the gross annual receipts of the grantee for the first two years' operation, and then negotiable thereafter. Such payment by the grantee to the city shall be made annually, or as otherwise provided in the grantee's franchise, by delivery of the same to the city clerk. "Gross receipts" shall not include installation fees. B. The grantee shall file with the city, within thirty (30) days after the expiration of any calendar year or portion thereof during which such franchise is in force, a financial statement prepared by a certified public accountant, or person otherwise satisfactory to the city, showing in detail the gross annual receipts, as defined in this chapter, of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the city, within fifteen (I 5) days after the time for filing such statements, the sum hereinabove prescribed or any unpaid balance 60 thereof for the calendar year or portion thereof covered by such statements. C. The city shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of any and all amounts paid under this chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this chapter or for the perfonnance of any other obligation under this chapter. D. In the event of any holding over after expiration of other termination of any franchise granted under this chapter, without the consent of the city, the grantee shall pay to the city reasonable compensation and damages, of not less than one hundred (1 00) percent of its total gross profits during such period. (Ord. 167 § 4, 1980)

A. Any privilege claimed under any such franchise by the grantee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. B. Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of the city expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer of assignment shall be made only by an instrument in writing,

) a duly executed copy of which shall be filed in the office of the city clerk within thirty (30) days after such transfer of assignment. The consent of the city may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with the provisions of this chapter; and provided, further, that no such consent shall be required for a transfer in trust ' mortgage, or other hypothecation as a whole to ' secure an indebtedness. C. Time shall be of the essence of any franchise granted hereunder. The grantee shall not be relieved of the grantee's obligation to comply promptly with and of the provisions of this chapter or by any failure of the city to enforce prompt compliance. D. Any right or power in, or duty impressed upon, any officer, employee, department or council of the city shall be subject to transfer by the city to any other officer, employee, department or council of the city. E. The grantee shall have no recourse whatsoever against the city for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise issued under this chapter or because of its enforcement. F. The grantee shall be subject to all requirements of city ordinances, rules, regulations and specifications heretofore or hereafter enacted or established. G. Any such franchise granted shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the city utility company, or from others maintaining poles in streets. H. Grantee is to avoid monopolistic practices and unfair competition and is not to 61 solicit television sales or service as part of hookup contract with the subscriber. (Ord. 167 § 5, 1980)

There is reserved to the city the power to amend any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance, or otherwise, on the part of the grantee. (Ord. 167 § 6, 1980)

service. A. Within thirty (30) days after acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not lim- ited to, any utility joint use attachment agree- ments, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities. B. Within ninety (90) days after obtaining all necessary permits, licenses and authorizations, grantee shall commence construction and installation of the CATV system. C. Within ninety (90) days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service shall be provided within one year from the date of the granting of a franchise.

D. Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth in this chapter, shall be grounds for termination of such franchise, under and pursuant to the terms of Section 5.08.030; provided, however, that the council in its discretion may extend the time for the commencement and completion of construc- tion and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond the grantee's control. (Ord. 167 § 7, 1980)

grantee. A. Any poles, wires, cable lines, conduits or other properties of the grantee to be con- structed or installed in streets, shall be so con- structed or installed only at such locations and in such manner as shall be approved by the director of public works acting in the exercise of his or her reasonable discretion. B. In those areas and portions of the city where the transmission of distribution facilities of both the public utility providing telephone service and those of the utility providing elec- tric service are underground or hereafter may be placed underground, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities un- derground. For the purpose of this subsection, "underground" shall include a partial under- ground system, e.g., streamlining. Amplifiers in grantee's transmission and distribution lines may be in appropriate housings upon the sur- face of the ground approved by the director of public works. (Ord. 167 § 8, 1980) 62

of property of grantee. A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of twelve (12) months, or in the event such system of property has been installed in any street or public place without complying with the requirements of grantee's franchise or this chapter, or the franchise has been terminated, cancelled or has expired, the grantee shall promptly, upon being given ten (10) days' notice, remove from the streets or public places all such property and poles of such system other than any which the director of public works may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the director of public works. B. Any property of the grantee remaining in place thirty (30) days after the termination or expiration of the franchise shall be considered permanently abandoned. The director of public works may extend such time not to exceed an additional thirty (30) days. C. Any property of the grantee to be abandoned in place shall be abandoned in such manner as the director of public works shall prescribe. Upon permanent abandonment ofthe property of the grantee in place, the property shall become that of the city, and the grantee shall submit to the director of public works an instrument in writing, to be approved by the city council, transferring to the city the ownership of such property. (Ord. 167 § 9, 1980)

( )

A. The grantee shall, concurrently with the filing of and acceptance of award of any franchise granted under this chapter, file with the city clerk, and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at grantee's sole expense, a corporate surety bond in a company and in a form approved by the city council, in the amount of two thousand five hundred dollars ($2,500.00), renewable annually, and conditioned upon the faithful performance of grantee, and upon the further condition that in the event grantee shall fail to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee hereunder, there shall be recoverable jointly and severally from the principle and surety of such bond any damages or loss suffered by the city as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed by this ordinance which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; such condition to be a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of the franchise or renewal by the grantee of from its exercise of any privilege therein granted. The bond shall provide that thirty (30) days' prior written notice of intention not to renew, cancellation, or material change, be given to the city. B. Neither the provisions of this section, nor any bond accepted by the city pursuant to this section, nor any damages recovered by the 63 city thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued under this chapter or for damages, either to the full amount of the bond or otherwise. (Ord. 167 § 10, 1980)

A. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city clerk, and at all times during the existence of any franchise granted under this chapter, maintain in full force and effect, at its own cost and expense, a liability insurance policy in the amount of two hundred thousand dollars ($200,000.00), in a company approved by, and in a form satisfactory to, the city council, indemnifying and saving harmless the city, its officers and employees from and against any and all claims, demands, actions, suits and proceedings by others, against all liability to others, including but not limited to any liability for damages by reason of or arising out or any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's CATV system, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney's fees, arising out of the exercise of enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required under this chapter. B. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city clerk, and at all times during the exercise of any franchise

granted under this chapter, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the city, its officers, council, commissions, agents and employees, in a company approved by, and a form satisfactory to, the city council, protecting the city and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of grantee under such franchise, with minimum liability limits of two hundred thousand dollars ($200,000.00) for personal injury or death of any one person and three hundred thousand dollars ($300,000.00) for personal injury or death of two or more persons in any one occurrence, and fifty thousand dollars ($50,000.00) for damage to property resulting from any one occurrence. C. The policies mentioned in subsection B of this section shall name the city, its officers, council, commissions, agents and employees as additional insured and shall contain a provision that a written notice of cancellation or reduction of coverage of such policy shall be delivered to the city ten ( 1 0) days in advance of the effective day thereof; if such insurance is provided by a policy which also covers grantee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 167 § 11, 1980)

records. A. The grantee shall at all times make and keep in the city full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the city. 64 B. The grantee shall file with the director of public works, on or before the last day in March of each year, a current map or set of maps drawn to scale, showing all CATV system equipment installed and in place in streets and other public places of the city. (Ord. 167 § 12, 1980)

The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service. (Ord. 167 § 13, 1980)

The grantee shall maintain an office so that CATV maintenance service shall be promptly available to subscribers. (Ord. 167 § 14(a), 1980)

No person, firm or corporation in the exist- ing service area of the grantee shall be arbitrar- ily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the appli- cable connection fee or monthly service charge. (Ord. 167 § 14(b), 1980)

A. Application for a franchise under this chapter shall be in writing, shall be filed with the city clerk, and shall contain the following information: l. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application

shall also state the names and addresses of its directors, main officers, major stockholders and associates and names and addresses of parent and subsidiary companies; 2. A statement and description of the CATV system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner in which applicant proposes to construct, install, maintain and operate the same; and particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system; 3. A description, in detail, of the public streets, public places and proposed public streets within which applicant proposes or seeks authority to construct, install or maintain CATV equipment or facilities; a detailed description of the equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed specific location thereof; 4. A map specifically showing and delineating the proposed service area or areas within which applicant proposes to provide CATV services and for which a franchise is requested; 5. A statement of schedule in a form approved by the director of public works of proposed rates and charges to subscribers for installation and services, and a copy of proposed service agreements between the grantee and its subscribers shall accompany the application. For unusual circumstances, such as underground cable required, or more than one hundred fifty (150) feet of distance from cable to connection of service to subscribers, an additional installment charge over that 65 normally charged for installation as specified in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the city, service may be made available on the basis of cost of materials, labor and easements if required by the grantee; 6. A financial statement prepared by a certified public accountant, public accountant, or person otherwise satisfactory to the council showing applicant's fmancial status and financial ability to complete the construction and installation of the proposed CATV system; 7. The council may at any time demand, and applicant shall provide, such supplemen- tary, additional or other information as the council may deem reasonably necessary to determine whether the requested franchise should be granted. B. Upon consideration of any such application, the council may refuse to grant the requested franchise or the council may by ordinance grant a franchise for a CATV system to any such applicant as may appear from such application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the city. The council's decision in the matter shall be final. If favorably considered, the application submitted shall constitute and form part of the franchise granted. (Ord. 167 § 15, 1980)

Any franchise granted under this chapter is renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required in this chapter for obtaining the original franchise, except those which are by their terms expressly inapplicable provided that the council may at its option

waive compliance with any or all of the requirements of Section 5.08.150. (Ord. 167 § 16, 1980)

of franchise. A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the chapter granting same has become effective. B. Within thirty (30) days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the city clerk written acceptance, in form satisfactory to the city council, of the franchise, together with the bond and insurance policies provided for in this chapter, and the grantee's agreement to be bound by and to comply with and to do all things required of him by the provisions of this chapter and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public, and shall in form and content be satisfactory to and approved by the city council. (Ord. 167 § 17, 1980)

A. From and after the effective date of the ordinance codified in this chapter, it is unlawful for any person to establish, operate, or to carry on the business of distributing to any persons in this city any television signals or radio signals by means of a CATV system unless a franchise therefor has been first obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect. 66 5.08.1 80 B. It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this city for the purpose of taking or receiving television signals, radio signals, pictures, programs or sound. C. It is unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this city for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of such system. D. It is unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. (Ord. 167 § 18, 1980)