Chapter 5.28
CABLE COMMUNICATIONS
Sections:
5.28.030 Council authority to grant franchises or licenses—Duration.
5.28.040 Franchise—Interpretation—Limitations.
5.28.050 Franchise—Application—Acceptance—Transfer.
5.28.060 Systems design, construction and technical performance standards.
5.28.070 Permits and construction.
5.28.100 Operation and service.
5.28.120 Compensations and guarantee to the city.
5.28.130 Property and records—Inspection.
5.28.140 Adoption of rules and regulations.
5.28.150 Amendments to provisions.
5.28.010 Short title.
This chapter shall be known as the “Battle Ground Cable Communications Ordinance.” (Ord. 575 § 1, 1986)
5.28.020 Definitions.
For the purposes of this chapter, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given in this chapter. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.
1. “Applicant” means any person or corporation submitting an application for a cable communications franchise.
2. “Basic service” means that service regularly provided to all subscribers at a basic monthly rate including, but not limited to, the retransmissions of local and distant broadcast television signals, nonpay satellite services, automated services, local origination and access services.
3. “Cable communications system” or “catv system” means a system employing antennae, microwave, wire, wave-guides, coaxial cables, or other conductors, equipment or facilities in the public rights-of-way, and designed, constructed or used for the purpose of:
a. Collecting and amplifying local and distant broadcast television or radio signals and transmitting and distributing them;
b. Transmitting original cablecast programming not received through television broadcast signals;
c. Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers;
d. Transmitting and receiving all other signals: digital, voice, audio-visual, or other forms of electromagnetic signals.
4. “Channel” means a six megahertz (MHz) frequency band, which is capable of carrying either one standard audio-visual television signal, or a number of audio, digital or other nonvideo signals.
5. “City” means the city of Battle Ground, a municipal corporation of the state of Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.
6. “Community access channel” or “access channel” means any channel or portion of a channel utilized for programming on a nonprofit basis.
7. “Council” means the present governing body of the city of Battle Ground or any future board constituting the legislative body of the city of Battle Ground.
8. “Federal Communications Commission” or “FCC” means the present federal agency of that name as constituted by the Communications Act of 1934, or any successor agency created by the United States Congress.
9. “Franchise,” “franchise ordinance” or “franchise agreement” means any authorization, or renewal thereof, granted under this chapter in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a cable communications system in the city of Battle Ground. No such authorization in whatever form granted shall mean or include any license or permit generally required for the privilege of transacting and carrying on business within the city of Battle Ground as required by other ordinances and laws of the city of Battle Ground.
10. “Grantee” means the person, firm or corporation to whom or which a franchise, as defined in this section, is granted by the council under this chapter, and the lawful successor, transferee or assignee of such person, firm or corporation.
11. “Grantor” means the city of Battle Ground acting through its council.
12. “Gross receipts” means any and all compensation in whatever form, directly or indirectly received by grantee, from its city of Battle Ground cable communications system, not including any taxes on services furnished by the grantee, which taxes are imposed directly on a subscriber or user by a city, county, state or other governmental unit, and collected by the grantee for such entity.
13. “Institution” means a building or buildings where service may be utilized in connection with business, trade, profession, public agency or service, school, or nonprofit organization.
14. “Institutional network” means a cable communications network designed principally for the provision of nonentertainment interactive services to businesses, schools, public agencies or other nonprofit agencies for use in connection with the ongoing operations of such institutions.
15. “Institutional services” means services delivered on the institutional network.
16. “Institutional subscriber” means a place of business, public agency, school or nonprofit corporation receiving institutional services on the institutional subscriber network.
17. “Interactive services” means services provided to subscribers where the subscriber either (a) both receives information consisting of either television or other signal and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (b) transmits signals to any other location for any purpose.
18. “Leased access channel” means any channel or portion of a channel available for programming for a fee or charge by persons or entities other than the grantee.
19. “Local origination channel” means any channel or portion of a channel where the grantee is the only designated programmer, and which is utilized to provide television programs to subscribers.
20. “Nonbasic service” means any cable service in addition to basic service.
21. “Premium or pay-TV service” means pay-per-program, pay-per-channel or subscription service, i.e., delivered to subscribers for a fee or charge over and above the regular charges for basic service.
22. “Public access channel” means any channel or portion of a channel where any member of the general public may be a programmer on a first come, first served basis, subject to appropriate rules formulated by the city and/or the grantee.
23. “Residential network” means a cable communications system designed principally for the delivery of entertainment, community access and interactive services to individual dwelling units.
24. “Residential services” means services delivered on the residential network.
24. “Residential subscriber” means a subscriber who receives residential services on the residential network.
25. “Streets, public ways or right-of-ways” means the surface of and the space above and below any public street, avenue, road, highway, freeway, boulevard, lane, concourse, driveway, bridge, tunnel, park, parkway, sidewalk, waterway, dock, pier, alley, court, right-of-way, public utility easement, or any other public place, ground or water, now or hereafter existing within the city of Battle Ground.
26. “Subscriber” means any person or institution that elects to subscribe to, for any purpose, a service provided by the grantee by means of or in connection with the cable communications system whether or not a fee is paid for such service.
27. “Tapping” means the observing of a communications signal exchange where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever. (Ord. 575 § 2, 1986)
5.28.030 Council authority to grant franchises or licenses—Duration.
A. Authority to Grant Franchises or Licenses for Cable Television. It is unlawful to engage in or commence construction, operation or maintenance of a cable communications system without a franchise issued under this chapter. The council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a cable communications system within all or any portion of the city to any person, whether operating under an existing franchise or not, who makes application for authority to furnish a cable communications system which complies with the terms and conditions of this chapter; provided, that this section shall not be deemed to prohibit the council from restricting the number of grantees should it determine such a restriction would be in the public interest. In the event the city grants such additional franchises to construct, operate or maintain cable communications systems within the city under more favorable terms and conditions than those granted to a grantee in a previous franchise, then such franchise shall be considered modified to include such more favorable terms and conditions. Any franchise or license for the construction, maintenance and operation of cable television systems using the public streets, utility easements, other public rights-of-way or places shall conform to the provision of this chapter.
B. Incorporation by Reference. The provisions of this chapter shall be incorporated by reference in any franchise agreement or license approved under this chapter.
C. Nature and Extent of the Grant. Any franchise granted under this chapter by the city shall authorize the grantee, subject to the provisions contained in this chapter:
1. To engage in the business of operating and providing cable communication service and the distribution and sale of such service to subscribers within the city;
2. To erect, install, construct, repair, replace, reconstruct, upgrade, maintain and retain in, on, over, under, upon, across and along any street, such amplifiers and appliances, attachments, supporting structures and other property as may be necessary and appurtenant to the cable communications system; and, in addition, so to use, operate, and provide similar facilities, or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the city;
3. To maintain and operate such franchise properties for the origination, collection, transmission, amplification, distribution and reception of electromagnetic energy.
D. Duration of Franchises.
1. A franchise shall be effective on the thirty-first day after approval of the franchise agreement or license, provided that the grantee has filed, within twenty days after such effective date, a written instrument, addressed to the council, accepting a franchise or license, together with the insurance policies and bond required by subsections B, C and D of Section 5.28.120 of this chapter, agreeing to comply with all of the provisions of this chapter.
2. A franchise or license shall expire fifteen years after acceptance thereof unless sooner terminated by ordinance.
3. The council may terminate any franchise granted pursuant to the provisions of this chapter in the event of the willful failure or refusal by grantee to comply with any material requirement or limitation contained in this chapter, the franchise agreement or license.
The city council may make written demand that the grantee comply with any such requirement, limitation, term or condition. If the failure, refusal or neglect continues after notice for an unreasonable period of time, in no event to be less than sixty days following such written demand, the city treasurer/finance director may place his request for termination of the franchise upon the next regular council meeting agenda. The city treasurer/finance director shall cause to be served upon such grantee, at least thirty days prior to the date of such council meeting, a written notice of his intent to request such termination, and the time and place of the meeting.
The council shall consider the request, and shall hear any persons interested therein, and shall determine, based upon a preponderance of evidence, whether the grantee has committed a material breach of this chapter or the franchise agreement or license.
If the council shall determine that the grantee has committed a material breach, the grantor shall notify the grantee in writing of such determination, specifying the grounds therefor, and shall direct the grantee to take appropriate remedial action within such time, in such manner and upon such terms and conditions as are reasonable under the circumstances.
If the grantee fails to begin appropriate remedial action within thirty days following receipt of notification of a material breach by the grantee, then the grantor may, by ordinance, declare that the franchise of such grantee be terminated.
In the event the grantor declares, by ordinance, the franchise of a grantee shall be terminated, then such grantee shall have the right to have such declaration of termination reviewed de nova, in a court of appropriate jurisdiction. No such termination shall be effective until a final decision is reached by the court, if such review is initiated by the grantee.
4. In the event of termination, the city may purchase, or require any successor grantee to purchase grantee’s facilities at its then fair market value, with a reduction for uncompensated actual damages incurred by the city in connection with grantee operation. In the event the parties are unable to agree on the fair market value of grantee’s system as specified in this section, grantee and the purchaser each shall select one qualified appraiser experienced in the evaluation of cable communications systems.
The two selected appraisers shall select a third appraiser. The three appraisers shall be employed to determine the fair market value of grantee’s system. The fair evaluation shall be the average of the three evaluations of the appraisers. The appraisers shall be directed to reach their determination within thirty days. The grantee and the purchaser shall each pay fifty percent of the costs of employing such appraisers.
In the event of a material breach resulting in a termination of the franchise in accordance with the provisions in this chapter, the term “fair market value” means and includes the value of the system as a going concern, but shall not include the rights granted pursuant to the franchise.
5. Nothing in this chapter shall be deemed or construed to impair or affect, in any way or to any extent, the right of the city to acquire the property of the grantee through the exercise of the right of eminent domain, nor any other of the rights of the city under the franchise or any provision of law.
6. In the event of any holding over after expiration or other termination of any franchise granted under this chapter, the grantee shall pay to the city all fees consistent with the provisions in this chapter as if there had not been such holding over and as if the terms and conditions of the franchise continued in full force and effect. In the event of any such holding over, in direct contravention by the grantee of a final valid order of the city expressed by resolution, upon notice, requiring the grantee to cease and desist all operations upon a certain date, then and in that event, the grantee shall pay to the city, reasonable compensation and damages, of not less than one hundred percent of its gross revenue derived from all sources within the city during such period. Actual payment shall be subject to court challenge. (Ord. 02-009 § 56, 2002: Ord. 575 § 3, 1986)
5.28.040 Franchise—Interpretation—Limitations.
A. Interpretation. Unless otherwise specifically prescribed in this chapter, the following provisions shall govern the interpretation and construction of a franchise:
1. Time is of the essence. The grantee shall not be relieved of its obligation to promptly comply with any provision of this chapter, or the ordinance granting the franchise, by failure of the city to enforce prompt compliance with the same or any other provision.
2. Any right or power conferred, or duty imposed upon any officer, employee, department or board of the city, is subject to transfer by operation of law to any other officer, employee, department or board of the city.
3. The grantee shall have no recourse whatsoever against the city for any loss, costs, expense or damage, arising out of any provision or requirement of a franchise or the enforcement thereof except to the extent that such loss, cost, expense or damage results from the negligence or intentional misconduct of the city.
4. A franchise does not relieve the grantee of any requirement of the city or of any ordinance, rule, regulation or specification of the city, including, but not limited to any requirement relating to street work, street excavation permits, or the use, removal or relocation of property in streets.
5. The granting of a franchise, or any of the provisions contained in this chapter, shall not be construed to prevent the city from granting any identical or similar franchise to any person or corporation other than the grantee.
B. Limitations Upon Grant.
1. No privilege or exemption is granted or conferred by a franchise except those specifically prescribed in this chapter.
2. Any privilege claimed under a franchise by the grantee in any street shall be subordinate to any prior lawful occupancy of the street. The city reserves the right to reasonably designate where a grantee’s facilities are to be placed within the public ways.
3. A franchise is a privilege to be held in personal trust by the original grantee. It cannot in any event be transferred in part, and it is not to be sold, transferred, leased, merged, assigned or disposed of as a whole, either by forced sale, merger, consolidation or otherwise, without prior consent of the city expressed by resolution. Such consent shall not be unreasonably withheld. No such consent shall be required for any transfer in trust, mortgage or other hypothecation, as a whole, to secure an indebtedness.
4. The grantee shall at all times comply with all applicable rules of the Federal Communications Commission.
5. A grantee, shall at all times during the life of its franchise, be subject to the lawful exercise of the city’s police power and such reasonable regulations of general applicability as the council may subsequently promulgate thereunder; provided, however, that no such exercise or regulations shall materially or unlawfully increase the burdens of the grantee in complying with this chapter or materially or unlawfully diminish benefits to be obtained under this franchise.
6. Nothing contained in this chapter shall be deemed to prohibit in any way the right of the city to provide, for consideration, rights or privileges in addition to those set forth in Section 5.28.030C of this chapter.
7. Any franchise granted shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the city, utility company or from others maintaining utilities in the public ways.
8. Whenever in the judgment of the grantor it is deemed impracticable to permit erection of poles or construction of underground conduit system by any utility which may at the time have authority to construct or maintain a conduit or poles in street area, the grantor may require the grantee to afford to such utility the right to use such poles or facilities of the grantee as the grantor finds practicable in common with the grantee, both as they may agree upon, but in case they fail to agree within a reasonable time, then upon such terms and conditions as may deemed reasonable by a board of arbitration constituted and conducted in accordance with state law.
9. Any franchise granted shall be in lieu of any and all other conflicting rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee, or any successor to any interest of the grantee, of or pertaining to the construction, operation or maintenance of any cable communications system in the city, as an abandonment of any and all of such rights, privileges, powers, immunities and authorities within the city to the effect that, as between the grantee and the city, and all construction, operation and maintenance by any grantee of any cable communications system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to such franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.
10. No franchise shall authorize use of any public property other than public right-of-way and public utility easements owned by the city, unless such franchise or subsequent approval of the director of public works expressly authorizes such other public property.
11. The grantee shall be subject to all provisions of the other ordinances, rules, regulations and other provisions of the city heretofore or hereafter adopted, including but not limited to those pertaining to works and activities in, on, over, under and about public right-of-ways.
12. Any privilege claimed, under such franchise granted, in any public right-of-way or other public property shall be subordinate to the public use and any other lawful use thereof.
13. Subject to the grantee’s constitutional protection against impairment of contracts, the grantee shall be subject to the provisions of general laws of the state of Washington or as hereafter amended, when applicable to the exercise of any privilege contained in any franchise granted pursuant to this chapter, including but not limited to those pertaining to works and activities in and about state highways.
14. If the Federal Communications Commission or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise granted, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the city, the jurisdiction of the city shall cease and no longer exist.
15. The preemption or preclusion of the exercise by the city of any of its police power shall not diminish, impair or affect any other contractual benefit to the city of the grantee nor any contractual obligation of the grantee under the franchise granted.
16. Any and all minimum technical performance standards governing the operations of the grantee and any and all minimum rates, ratios and charges specified in any franchise granted, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the city, and any and all rights, powers, privileges and authorities of the city to determine, establish or fix any of the same, are each and all declared by the city and by any grantees accepting any franchise to be contractual in nature and to be for the benefit of the city.
17. The form of the grantee’s contract with the subscriber shall also be subject to approval of the city.
18. It is not the city’s intention to prohibit the erection or controlled use of individual television antennas, and no one is or will be required to receive cable communications service or connect with a cable communications system.
19. Should the grantee ever fail to pay any sum of money to the city owing to the city under provisions of this chapter, or the franchise ordinance, when such sum becomes due and payable, the grantee shall pay interest to the city on the delinquent sum, until it is fully paid at two interest points above the prime rate of interest charged in the Battle Ground area as calculated by the city.
20. A franchise to proceed with operation, or construction and operation, of a cable communications system shall not be construed as any limitation upon the right of the city to grant to other persons or corporations, rights, privileges or authority similar to or different, from the rights, privileges or authority set forth in this chapter or the franchise document itself, in the same or other streets, alleys, public highways, public places, or other public rights-of-way by agreement, franchise, permit or otherwise. Such rights, privileges or authority, however, shall only pertain insofar as they do not provide an unfair competitive advantage.
C. Rights Reserved to City. There is provided and reserved to the city every right and power which is required to be in this chapter reserved or provided by any provision of the city or its ordinances, as amended, and the grantee by its acceptance of a franchise agrees to be bound thereby and to comply with any action or requirement of the city in its exercise of any such right or power; provided, however that no such action or requirement shall materially and unlawfully increase the burdens of the grantee in complying with this chapter or materially and unlawfully diminish benefits to be obtained under the franchise.
1. Neither the granting of a franchise nor any provision of this chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the city, including regulation of subscription rates as permitted by law.
2. There shall be reserved to the city every right and power which is required to be reserved or provided by law and insofar as provided for within the franchise agreement, and the grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or agreements of the city in its exercise of such rights and power, theretofore, or thereafter enacted or established.
3. The city at its option, when for sufficient cause as deemed by the council, may require that the annual proof of performance tests, addressed in Section 5.28.060 of this chapter, be conducted or observed by a qualified member of the city’s staff or its designated representatives. The city reserves the right to have the measurements, associated with the city observed performance tests, conducted at city selected points and at a greater number of test points than the minimum required by Section 76.601 of the FCC Rules.
4. Any delegable right, power or duty of the council, the city, or any officials of the city may be transferred or delegated to an appropriate officer, employee or department of the city.
5. Except where otherwise preempted by federal or state law, the city reserves the right to negotiate other reasonable technical and operational performance standards for system franchises granted pursuant to this chapter. The grantee shall have the duty to negotiate in good faith with the city.
6. The city reserves the right to enact reasonable regulations pertaining to any franchise granted pursuant to this chapter which may include, but are not limited to:
a. Construction and use of poles;
b. Use of poles and conduits by the city;
c. Common user;
d. Filing of pole user agreement;
e. Reservation of street rights;
f. Restoration of streets; and
g. Movement of facilities.
7. The city reserves the right to maintain, or establish and maintain, a cable communications advisory committee to assist the council in regulating cable activity in the city. The members and duties of any such committee, if any, to be as established by the council.
8. The city reserves the right to join with one or more of the other local area city and/or county governments in the operation of an intergovernmental administrative authority for the purpose of joint administration of the cable communications franchises of the various members of the joint authority. The city reserves the right to assign the administration of the provisions of any franchise granted pursuant to this chapter to such a duly established joint authority, and to join with other members of the authority in developing and maintaining such intergovernmental agreement bylaws, rules and regulations as necessary for the proper administration of the joint authority.
9. Should the state of Washington, or any agency thereof, or the Federal Government or agency thereof subsequently require the grantee to act in a manner which is inconsistent with any provisions of this chapter, franchise ordinance or associated resolutions and orders, the grantee shall notify the city immediately. Upon receipt of such notification, the city shall determine if a material provision of the franchise is affected. Upon such determination, the city shall have the right to modify or amend any of the sections of the franchise to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter.
10. The city shall have the right, free of charge, of installing, maintaining and operating, upon antenna towers, poles and in conduit of the grantee, coaxial cable, wire, fixtures and appurtenances necessary for a city communications system; provided such equipment is installed, maintained and operated so as not to interfere with property or operations of the grantee, and that the grantee shall not be responsible for any damage without his/her fault resulting to the signs, wires, cables or property of the city from such use by the city.
11. Any intrastate interconnection of interactive services between the system operated by the grantee and any other system shall be subject to the regulatory authority of the city, where such interconnection utilizes the city’s public rights-of-way.
12. The reservation of any particular right shall not be construed to limit the promulgation of any other reasonable rules and regulations. (Ord. 575 § 4, 1986)
5.28.050 Franchise—Application—Acceptance—Transfer.
A. Franchise Application.
1. This chapter itself grants no authority to operate a cable communications system to any person(s). Such grants are made only by the adoption of a separate ordinance awarding a specific franchise to an applicant who has complied with the provisions of this chapter.
2. Each application for a franchise to construct, operate or maintain any cable communications system(s) in the city shall be filed with the city treasurer/finance director and shall contain or be accompanied by the following, as a minimum:
a. The name, address and telephone number of the applicant;
b. A detailed statement of the corporate or other business entity organization of the applicant including, but not limited to, the following and to whatever extent required by the city:
i. The names, residence and business addresses of all officers, directors and associates of the applicant,
ii. The names, residence and business addresses of all officers, persons and entities having, controlling or being entitled to have or control of one percent or more of the ownership of the applicant and the respective ownership share of each person or entity,
iii. The names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby,
iv. A detailed description of all previous experience of the applicant in providing cable television communications system service in related or similar fields,
v. A detailed and complete financial statement of the applicant,
vi. A statement identifying, by place and date, any and all cable television franchises awarded the applicant, or its parent or subsidiary; the status of such franchises with respect to completion thereof; the total cost of such systems; and the amount of applicant’s and its parent’s or subsidiary’s resources committed to the completion thereof;
c. A thorough, detailed description of the proposed cable communications system and plan of operation of the applicant which shall include, but not be limited to the following:
i. A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served,
ii. A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall the operational and performance standards be less than those adopted by the Rules and Regulations of the FCC (contained in Title 47, Subpart K, Sections 76.601 et. seq. 9), and as augmented in this chapter and modified by the franchise awarded,
iii. A detailed estimate of the cost of constructing the applicant’s proposed system,
iv. A copy of the form of any agreement, undertaking or other instrument proposed to be entered into between the applicant and any subscriber,
v. A detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral or implied, existing or proposed to exist between the applicant and any person, firm or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise,
vi. A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and service charges;
d. A copy of any agreement existing between the applicant and any public utility subject to regulation by the Washington Public Utilities Division providing for the use of any facilities of the public, utility, including but not limited to poles, lines or conduits, within the city and/or adjacent areas;
e. Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the council, or by any provision of any other ordinance of the city;
f. An application fee in a sum to be set by the city which shall be in the form of cash, certified or cashier’s check or money order, to pay the costs of studying, investigating and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part, except to the extent that such fee exceeds the actual costs incurred by the city in studying, investigating and otherwise processing the application; provided, that any applicant who shall deliver to the city treasurer/finance director a written withdrawal of or cancellation of any application following the date such application is received by the city treasurer/finance director, shall be entitled to have returned and refunded the sum of fifty percent of the fee less any actual costs or expenses incurred by the city by reason of such applications.
3. The council may, by advertisement or otherwise, solicit applications for cable communications system franchises, and may determine and fix any date upon, after or before which the same shall be received by the city, or the date before which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions or limitations respecting the soliciting, calling for, making and receiving of such applications.
4. Upon receipt of any application for franchise, the council shall refer the same to the cable communications advisory committee, if such exists, or city treasurer/finance director if not, which shall prepare a report and make recommendations respecting such application, and cause the same to be completed and filed with the council within one hundred and twenty days.
5. In making any determinations under this chapter as to any application the council shall give due consideration to the character and quality of the service proposed, rates to subscribers, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by policy conditions, franchise limitations and requirements, and any other consideration deemed pertinent by the council for safeguarding the interest of the city and the public. The council, in its discretion, shall determine the award of any franchise on the basis of such considerations and without competitive bidding.
6. If the council, after public hearing, shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected.
7. If the council shall determine to further consider the application, the following shall be done:
a. The council shall decide and specify the terms and conditions of any franchise to be granted under this chapter and as provided in this chapter;
b. The council shall give notice of its intention to consider the granting of such a franchise, stating the names of the proposed grantee, and that copies of the proposed franchise may be reviewed at the office of the city treasurer/finance director, fixing and setting forth a time and public place certain when and where interested parties may inspect all the bona fide applications, fixing and setting forth a day, hour and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests and appear before the council and be heard, and directing the city treasurer/finance director to publish notice of such resolution’s adoption at least once within ten days of the passage thereof in a newspaper of general circulation within the city.
8. At the time set for the hearing, or at any adjournment thereof, the council shall proceed to hear all written protests. Thereafter, the council shall make one of the following determinations:
a. That such franchise be denied; or
b. That such franchise be granted upon such conditions as the council deems appropriate, which conditions may include, on a not to exceed basis, where in accordance with applicable federal and state regulations and laws:
i. Charges for installation,
ii. Subscriber rates,
iii. Service rates for separate classifications of service such as additional connections.
9. If the council determines that a franchise be denied, such determination shall be expressed by resolution; if the council determines that a franchise be granted, such determination shall be expressed by ordinance granting a franchise to the applicant. The action of the council shall be final and conclusive.
10. The grantee, within thirty days of receipt of written notification by grantor following franchise award, upon initial franchise award and any renewal thereof, shall pay to the city a sum of money to reimburse the city for all expenses incurred by the provisions of this chapter regarding the franchise award or renewal process, beyond those defrayed by application fees. The city shall furnish the grantee a statement of such expenses with the notification.
B. Replacement Franchise.
1. The service provided by the grantee under a franchise may be required to continue uninterrupted beyond the expiration or cancellation of a franchise, but not for longer than twenty-four months thereafter. To assure continued service to the subscribers, the city shall issue a request for proposals, for a replacement franchise, not later than twenty-four months prior to expiration of a franchise. The request for proposals shall include the minimum acceptable level of system capability, services, rates, access, etc. as determined by the city, to meet the needs of the Battle Ground community. If the city deems grantee’s past performance to warrant consideration for franchise renewal, then the city shall provide grantee first right of refusal in accepting the franchise offered. However, if the city deems the grantee’s past performance to not warrant such consideration, or if the grantee elects to not accept the franchise offered under its first right of refusal, then the city may consider other applicants with the understanding that no further consideration will be given to awarding the incumbent grantee a replacement franchise.
2. Notwithstanding the provisions of subsection B1 of this section, the grantee may submit a proposal for the renewal of a franchise at any time, and the grantor may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time, including after proceedings pursuant to this section have commenced. The provisions of subsection B1 of this section, at the city’s sole discretion, shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsection B1 of this section.
3. Franchises will normally not be renewed for periods in excess of fifteen years, and may be renewed prior to expiration of an existent franchise in accordance with the procedures set forth in subsection B1 of this section.
4. If the city elects to provide the incumbent grantee the first right of refusal addressed in subsection B1 of this section, then the request for proposals issued by the city shall advise other potential applicants accordingly, and will provide for the full return of any application fee received from an applicant other than the incumbent in the event the incumbent accepts the franchise offered.
5. If the city after public hearing elects to not consider the incumbent grantee for a replacement franchise, then it shall do so by resolution prior to issuance of an request for proposals for the replacement franchise. In such an event the city may purchase or require any successor grantee to purchase grantee’s facilities for a cost not to exceed its fair market value, with a reduction for any uncompensated damages incurred by the city in connection with grantee’s operation. Fair market value is to be determined in accordance with the process set forth in Section 5.28.030D4 of this chapter. The parties shall divide expenses of arbitration, if any, evenly among themselves.
C. Franchise Acceptance.
1. No franchise granted under this chapter shall become effective for any purpose unless and until written acceptance thereof, together with the bond and insurance policies and deposits required by Sections 5.28.120B through 5.28.120E of this chapter, shall have been filed with the city clerk. Written acceptance, which shall be in the form and substance approved by the city attorney, shall also be and operate as an acceptance of each and every term and condition and limitation contained in this chapter, and in such franchise, or as otherwise specified in this chapter and therein provided.
2. The written acceptance shall be filed by the grantee within twenty days after the effective date of the ordinance granting such franchise. In the event this day falls on a nonworking day, then the next working day will suffice.
3. In default of the filing of such written acceptance as required in this chapter, the grantee shall be deemed to have rejected and repudiated the franchise. Thereafter, the acceptance of the grantee shall not be received nor filed by the city clerk. The grantee shall have no rights, remedies or redress in the premises, unless and until the council, by resolution, shall determine that such acceptance be received or filed, and then upon such terms and conditions as the council may impose.
4. In any case, and in any instance, all rights, remedies and redress which may or shall be available to the city, shall at all times be available to the city, and shall be preserved and maintained and shall continuously exist in and to the city, and shall not be in any manner or means modified, abridged, altered, restricted or impaired by reason of any of these premises, or otherwise.
5. Any franchise granted and accepted under this chapter shall be in lieu of any and all other conflicting rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by the grantee, of or pertaining to the construction, operation or maintenance of any cable communications system(s) in the city.
D. Franchise Transfer or Assignment.
1. Any such franchise shall be a privilege to be held in personal trust by the grantee. The franchise shall not be sublet or assigned, nor shall any rights or privileges therein granted or authorized be leased, assigned, mortgaged, sold, transferred or disposed of either in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person(s), except the grantee, either by act of the grantee or by operation of law, without the consent of the city expressed by ordinance.
2. The grantee shall promptly notify the city of any proposed change in, or transfer of, or acquisition by any other party of control of the grantee with respect to which the consent of the grantor is required, pursuant to subsection D1 of this section. Such change of control shall make this franchise subject to revocation unless and until the council have consented thereto.
3. Consent of the council shall not be granted until it has examined the proposed assignee’s legal, financial, technical, character and other qualifications to construct, operate and maintain a cable communications system in the city and has afforded all interested parties notice and an opportunity to be heard on the question. The grantee shall assist the city in any such examination.
4. The consent of the council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by council and this chapter; and provided further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed fifty percent of the market value of the property used by the grantee in the conduct of the cable communications system, prior consent of the council shall be required for such transfer.
5. In the event that grantee is a corporation, prior approval of the council shall be required where there is an actual change in control or where ownership of more than fifty percent of the voting stock of grantee is acquired by a person or group of persons acting in concert, none of whom already own fifty percent or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the council shall constitute a failure to comply with a provision of this chapter within the meaning of 5.28.030D3 of this chapter.
6. Any such transfer or assignment shall be made by an instrument in writing, which shall include acceptance of all terms and conditions of the franchise, a duly executed copy of which shall be filed with the city clerk within thirty days after any such transfer or assignment. (Ord. 02-009 § 57, 2002: Ord. 575 § 5, 1986)
5.28.060 Systems design, construction and technical performance standards.
A. Standards. Standards of cable communications system(s) design, construction, safety and operation will meet, but not limited to, all applicable city, state and national or federal codes, rules, regulations and specifications referenced and/or set forth in this chapter and the franchise agreement, including those documents incorporated therein by reference.
B. Compatibility. All cable communications systems authorized to be constructed and/or operated pursuant to this chapter shall be, insofar as financially and technically feasible, compatible one with another.
C. Preventative Maintenance. A comprehensive routine preventative maintenance program shall be developed, effected and maintained for each system by the respective grantee to ensure continued top quality cable communications operating standards in consonance with FCC Part 76 and the technical specifications stipulated in the franchise agreement.
D. Proof of Performance. The services of a newly constructed system, or one that has undergone a major upgrade, shall not be offered for sale prior to proof of performance testing in accordance with FCC Part 76.601 and technical specifications and standards as set forth in the franchise agreement.
E. Corrective Maintenance. The grantee’s corrective maintenance program shall render efficient corrective service, make repairs promptly, and interrupt subscriber service only for good cause and for the shortest possible time. Such interruptions shall be proceeded by notice where practicable and shall occur during a period of minimum use of the system if feasible. A written log shall be maintained of all service interruptions. The log shall reflect the date, time, duration and reason for each service interruption. The record of the log shall be kept on file for a minimum of three years. (Ord. 575 § 6, 1986)
5.28.070 Permits and construction.
A. Permits.
1. Within thirty days of acceptance of 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 limited to, any utility joint use attachment agreements, encroachment permits, microwave carrier licenses and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television/communications systems, or associated microwave transmission facilities.
2. In connection with subsection A of this section, copies of all petitions, applications and communications submitted by the grantee to the FCC, Securities and Exchange Commission or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the grantee’s cable communications operations, shall also be submitted to the city treasurer/finance director on request for information purposes; provided, that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the grantee as provided further that records shall be exempt from inspection, to the extent such records are protected by law against discovery in litigation.
B. General Construction.
1. Within ninety days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, the grantee shall commence system construction, extension and/or upgrade as may be appropriate under the franchise agreement.
2. Within one year following franchise award, the grantee shall proceed to render service to subscribers in accordance with its system construction, extension and/or upgrade commitments under the franchise agreement. The completion of the system construction, extension and/or upgrade shall be pursued with reasonable diligence thereafter, so that service to all of the areas designated and scheduled on the map and plan of construction made part of the franchise agreement shall be provided as set forth therein.
3. 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, except as otherwise provided for in the franchise agreement, shall be grounds for termination of such franchise. By resolution and order, the council, in its discretion, may extend the time for the commencement and completion of construction, extension and/or upgrade for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.
4. The city shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits or other similar facilities erected, controlled or maintained exclusively by or for grantee in any street, provided such use by the city does not interfere with the use by the grantee.
5. The grantee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different or additional poles, conduits or other facilities whether on public property or on privately owned property unless and until first securing the written approval of the director of public works.
6. In all sections of the city where wires, cables and other system appurtenances are mounted aboveground, every reasonable effort shall be made to minimize obstruction of the view of residents, and every reasonable effort shall be made to preclude an unsightly system installation.
C. Underground Facilities.
1. Unless otherwise authorized by council, in those areas and portions of the city where the transmission and/or distribution facilities of the public utility providing telephone service, and those of the utility providing electric service, are underground or hereafter are placed underground, or are to be placed underground by a builder, developer or subdivider as part of a development or subdivision, then the grantee shall likewise construct, operate and maintain all its transmission and distribution facilities underground to the maximum extent that existing technology permits the grantee to do so.
2. The builder or developer of the new residential unit or units will provide and install to the grantee’s current specifications, at his or her sole cost and expense, trenches for underground distribution, service laterals, service drop trenches to the unit’s point of entry, backfill and restoration of trench area, conduit and internal wiring.
The builder or developer will provide the grantee with sufficient conduit space to enable it to furnish cable service in conformity with the requirements of this chapter and with such additional requirements relative to the operation of the grantee’s cable communications system as are reasonably foreseeable. The grantee’s amplifiers and essential connections thereto may be in appropriate housing above the surface of the ground as approved by the director of public works. The city shall not in any manner be responsible for any costs incurred by the grantee in placing this property underground.
To insure that cable service is available under these provisions, the builder or developer will provide the director of public works plans for inclusion of cable service with his or her plans for utilities, including telephone, electrical service and natural gas service. The builder or developer will also include proof that a contractual agreement exists between the builder or developer and the grantee which is consistent with this section before a building permit is issued.
Provided the builder or developer has fulfilled his or her contractual commitments to the grantee, and provided that the minimum housing density requirement as set forth in the franchise agreement is met, or provided that when such minimum density requirement is not met that alternative funding deposits are made in accordance with the franchise agreement, the grantee shall make cable service available to such new unit or units within ninety days of the date of occupancy. New subdivisions, developments and multifamily residential units shall be considered occupied for these purposes when thirty-five housing units or sixty percent of such units, whichever is the lesser, are occupied.
3. In those areas and portions of the city where utility service and/or cable communications facilities are currently located underground, the grantee shall be responsible for the undergrounding of its cable facilities including the performance of all necessary trenching and backfilling of main line and service trenches, and furnishing of any imported backfill material required.
4. Previously installed aerial cable shall be undergrounded in concert, and on a cost-sharing basis, with utilities pursuant to the general ordinances of the city or applicable state law, or in event such action shall be taken by all utilities on a voluntary basis.
5. Subject to approval by the council, incidental appurtenances such as amplifier boxes and pedestal mounted terminal boxes may be placed above ground, but shall be of such size and design and shall be so located as not to be unsightly or hazardous to the public.
D. System Extension. The grantee shall extend residential and institutional service (the latter as set forth in the franchise agreement) according to the provisions of subsection C2 of this section. The grantee may charge a line extension fee to subscribers in the subdivision if the cost of extending the grantee’s distribution plant causes the subdivision to fall under the line extension formula described in the franchise agreement. Otherwise, subscribers in new subdivisions shall be connected for residential service at the grantee’s normal installation fee.
E. Conditions on Street Occupancy.
1. Any pavements, sidewalks, curbing or other paved area taken up or any excavations made by a grantee shall be done under permits issued for the work by proper officials of the city, and under their supervision and direction, and shall be done in such a manner as to give the least inconvenience to the inhabitants of the city. A grantee shall, at its own cost and expense, and in a manner approved by the director of public works, replace and restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturbance was done, and shall also make and keep full and complete plats, maps and records showing the exact locations of its facilities located within the public streets, ways and easements of the city. These maps shall be available for inspection at any time during normal business hours by city officials.
2. A grantee shall, on the request of any person holding a building moving permit issued by the city, temporarily raise of lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty-eight hours advance notice to arrange for such temporary wire changes.
F. Street Work.
1. Upon any failure of the grantee to commence, pursue or complete any work required of it by law or by the provisions of a franchise to be done in any street, the council, at its option and according to law, may cause such work to be done and the grantee shall pay to the city the cost thereof in the itemized amounts reported by the council to the grantee, within thirty days after receipt of such itemized report.
2. In the event that any part of such system has been installed in any street or other area without complying with the requirements of this chapter and/or the franchise agreement; or the use of any part of the system of the grantee is discontinued for any reason for a continuous period of thirty days, without prior written notice to and approval by the city; or any franchise shall be terminated, cancelled or shall expire, then the grantee shall, at the option of the city, and at the expense of grantee and at no expense to the city, upon demand of the city, promptly remove from any streets or other area all property of grantee, and grantee shall promptly restore the street or other area from which such property has been removed to such condition as the city director of public works shall approve.
G. Changes Required by Public Improvement. The grantee at his expense shall protect, support, temporarily disconnect, relocate or remove any property of grantee when required by the council by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, power lines, structure or improvements by governmental agencies whether acting in a governmental or proprietary capacity, or any other structure of public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground; provided, that the grantee shall in all cases have the privileges and be under the obligations as to the abandonment of franchise property in place which are provided in subsection H of this section.
H. Removal or Abandonment of Grantee Property.
1. In the event the use of any grantee property is permanently discontinued, or no franchise has been obtained therefor, upon expiration of or within twelve months after any termination of a franchise, the grantee shall promptly remove from the streets all property involved, other than the council may, at its sole option, permit to be abandoned in place.
2. A permit to abandon in place must be obtained from the director of public works. Nothing under this chapter shall be deemed as taking of the property of grantee, and the grantee shall be entitled to no surcharge by reason of anything under this chapter.
3. Unless the grantee can reasonably demonstrate that he is making a good faith effort to sell the system, any property of the grantee remaining in place one hundred and twenty days after termination or expiration of the franchise shall be considered permanently abandoned. The director of public works may extend such time in thirty-day increments not to exceed two such extensions, or a total of one hundred and eighty days.
4. The grantee property to be abandoned in place shall be abandoned in such a manner as the council shall prescribe. Upon abandonment of any franchise property in place, the grantee shall submit to the council an instrument, satisfactory to the city attorney, transferring to the city the ownership of such property. (Ord. 02-009 § 58, 2002: Ord. 575 § 7, 1986)
5.28.080 System maintenance.
A. Responsibility of Grantee Generally. Throughout the life of a grantee’s franchise, and in addition to other service regulations adopted by council, and excepting circumstances beyond grantee’s control, such as acts of God, riots and civil disturbances, and in providing the forgoing services, a grantee shall maintain all parts of its system in good condition and in accordance with standards generally observed by the cable television industry. The system must serve individual residents, but should, insofar as specified in the franchise agreement, also serve as a broad based communications source for city government, other public facilities including hospitals, public libraries and schools and industrial and commercial business users.
B. Service Reliability. The grantee shall, as well, retain sufficient employees to provide safe, adequate and prompt service for all such residential subscribers, institutional facilities and business users. The grantee shall limit failures to minimum time duration by locating and correcting malfunctioning as promptly as is reasonably possible. (Ord. 575 § 8, 1986)
5.28.090 Safety requirements.
The grantee shall, at all times install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the city’s building regulations, and in such a manner that they will not interfere with any installations of the city. The grantee shall keep and maintain in a safe, suitable, substantial condition and in good order and repair, all its structures, lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys and public ways or places of the city wherever situated or located. (Ord. 575 § 9, 1986)
5.28.100 Operation and service.
A. Service Area. The grantee’s system design, construction, extension and/or upgrade shall be such that service shall be made available to all residential units within the grantee’s service area, as defined in the franchise agreement, for the normal installation fee, with the exception that in those locations where the dwelling units per strand mile of system plant are less than the dwellings per mile figure stipulated in the franchise agreement, the grantee shall provide cable service on a pro-rata sharing of the installation costs with the potential subscribers. The pro rata sharing costs will be in accordance with a formulation set forth in the franchise agreement.
B. Establishment of Service. Subject to such regulations as may be adopted by the council, the grantee shall install cable television service to all persons making a timely and bona fide request for such service at any location within the service area. After the grantee has established service pursuant to a franchise in any area of the city, such service shall not be suspended or abandoned unless such suspension or abandonment be authorized or ordered by the council.
C. Basic System Capability.
1. A cable communications system, to be installed and operated pursuant to this chapter and a franchise granted under this chapter shall, as a minimum, be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for the carriage of what the grantee is now or thereafter authorized by the FCC; and distribute color television signals which it received in color, and provide channel capacity and basic equipment for program production in cablecasting public, educational and government access uses.
2. The system should have a minimum capacity of fifty-two or more downstream video channels, and have two-way operational capability, the latter to be activated on a selective basis when technically and economically feasible, or as otherwise mutually agreed upon by the city and the grantee.
3. The cable communications system(s) permitted to be installed and operated pursuant to this chapter may also engage in the business of transmitting original cablecast programming not received through television broadcast signals, and transmitting any satellite delivered signals permitted by the FCC.
4. The system may also transmit television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers.
5. The system may also transmit and receive all other signals; digital, voice and audio-visual, as permitted by federal and state authorities.
D. Access. The grantee shall provide and maintain local origination and access facilities and channels for the benefit of city residents as set forth in the franchise agreement.
E. Municipal Services. With respect to basic television service, the grantee shall provide one or more drops, as set forth in the franchise agreement, and all basic subscriber services, without cost, when the system passes such facilities and as designated by the council, to public schools and community colleges within the city, and buildings owned and controlled by the city and used for public purposes and not for residential use.
E. Interconnection. The grantee may be required to provide interconnection to systems serving residential areas in the unincorporated area adjacent to the city. This and other possible system interconnections will be provided by the grantee as set forth in the franchise agreement.
F. Emergency Service.
1. The grantee may be required, in the franchise agreement, to design, construct and maintain the system in manner to provide for a restricted video and/or audio override of all video and audio channels during emergencies. If a video override capability is provided, the system shall include a character generator for delivery of emergency messages to the communicatively handicapped.
2. Emergency power sources shall be provided at the head-end, network distribution center, satellite earth station, processing hubs and other system locations as may be necessary to reasonably ensure that in the event of a power failure on any part of the system, service will be maintained on the rest of the system.
G. Subscriber Service.
1. It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the grantee are honored. Neither the city nor the grantee shall, as to rates, charges, service, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, nor subject any person to prejudice or disadvantage.
2. The grantee shall, through an arrangement with a local business or other agency within the city, provide the opportunity for subscribers to pay their service billings during normal working hours at a convenient point within the city. The grantee shall ensure that subscribers can, at such service point within the city, obtain service programming information and rates and charges schedules, subscribe or change services and exchange faulty converters for servicable ones. The grantee shall provide toll free telephone numbers so that subscribers may report service outages or deficiencies at any time. The grantee shall strive to ensure that its employees, including contracted representatives, maintain a high standard of courtesy in customer relations at all times. When the grantee’s basic service subscriptions number three thousand or more, the grantee shall open a complete local business office within the city, unless the grantee can reasonably demonstrate to the council’s satisfaction the lack of need for same. The council shall not unreasonably require the opening of such an office.
3. Before providing cable communications service to any new subscriber, the grantee shall provide a written notice to the subscriber substantially as follows:
“Subscriber is hereby notified that in providing cable television/communications service the Grantee is making use of public right-of-ways within the City of Battle Ground and that the continued use of such right-of-ways is in no way guaranteed. In the event the continued use of such right-of-ways is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television/communications service, subscriber agrees he will make no claim nor undertake any action against the City, its officers, or its employees if the service to be provided hereunder is interrupted or discontinued.”
4. In the event the grantee elects to rebuild, upgrade, modify or sell the system, or the city revokes or fails to renew the franchise, the grantee shall ensure that all subscribers receive continuous, uninterrupted service in accordance with the provisions of this chapter and the franchise agreement. In order to ensure compliance with federal law in event of franchise revocation or nonrenewal, the grantee’s franchise will be extended as necessary to cover such operation.
H. Subscribers Privacy.
1. The monitoring of any subscriber terminal without specific written authorization of the subscriber is prohibited. The grantee shall be responsible for the protection of subscriber privacy, prohibiting the capping and/or monitoring of cable, line, signal input device or subscriber outlet or receiver for any purpose whatsoever, except the grantee may conduct tests of the functioning of the system where necessary in order to ensure proper maintenance of the system and to collect performance data for agencies regulating the quality of the signal. Where critical information requires private communication electronic signal scrambling techniques must be used.
2. Listings of subscribers names and addresses may not be sold or otherwise released for any purpose, other than purposes directly related to the lawful operation of the cable communications system nor any list which identifies, by name, subscriber viewing habits, to any person, agency, entity, for any purpose whatsoever, without specific written authorization of the individual subscriber.
3. The grantee shall maintain constant vigilance with regard to possible abuses of the right of privacy or other human rights of any subscriber, programmer or general citizen resulting from any device or signal associated with the cable communication system. The grantee shall not place in any private residence any equipment capable of two-way communications without the written consent of the residents, and will not use the two-way communications capability of the system for subscriber surveillance of any kind without the written consent of the subscriber.
4. No cable, line, wire amplifier, converter or other piece of equipment owned by the grantee shall be attached to any residence or other property by the grantee without first securing the written permission of the owner or responsible occupant of any property involved.
5. No polls or other two-way responses of subscribers shall be conducted unless the program of which the poll is part shall contain an explicit disclosure of the nature, purpose and prospective use of the results of the poll. No commercial or other use of information of subscriber viewing habits or patterns may be made and no release of such information shall be permitted without prior consent of the council or pursuant to rules and regulations duly adopted by the city. (Ord. 575 § 10, 1986)
5.28.110 Rates and charges.
A. Federal and State Preemption. Except when and as preempted by federal and/or state laws and regulations, the procedures set forth in subsection B of this section, as may be modified by the franchise agreement, apply to the setting of rates and charges associated with the providing of services under this chapter and any franchise issued under this chapter.
B. Procedure for Change of Rates and Charges.
1. The grantee shall provide its subscribers and users rates and charges as set forth in the franchise agreement, and no change in rates and charges may be made without the prior approval of the council expressed by resolution as an integral part of the franchise agreement. Petitions for changes in rates and charges shall be reviewed (processed) and acted upon in accordance with the provisions of this section and will not be unreasonably denied.
2. Should the grantee desire to change its rates and charges, it shall file a petition with the council at least ninety days prior to the proposed date of change. The petition shall detail the proposed changes and set forth the basis for the requested change(s). The petition shall include system historical financial data (balance sheets and detailed profit and loss statements) in support of the petition for the period since commencement of system operations or the previous five years, whichever is the lesser.
3. The council determination of proper rates and charges shall be based on factors, which shall include, but not be limited to the quality of signal and service delivered to subscribers, channel capacity, number and quality of programming sources, and the underlying economics of the system (system cash flow, the grantee return on investment, etc.), for the grantee’s Battle Ground system and grantee’s total system if other areas besides the city are served by the same headend/hub.
4. In connection with any proposed increase in rate or charge the city may direct an authorized representative to conduct a hearing on the matter. If so directed, the representative shall set the day hour and place certain when and where any person having any interest therein may appear and be heard. This hearing should normally be conducted within sixty days from date of receipt of petition. The notice of public hearing on the matter should be published at least ten days before the date of the hearing in a newspaper of general circulation within the city.
5. At the time for such hearing, or any adjournment thereof, the representative shall hear the matter. Following the close of such hearing, the representative shall prepare and file with the council a report of the hearing, and his recommendations and the reasons therefor. After receipt of the representative’s report, the council shall determine whether to adopt the report or hold a further hearing. If the council elects to adopt the recommendations of the representative, it shall do so by resolution, describing and stating the proposed change in rates or charges; fixing and setting forth a day, hour and place certain when and where any person having any interest in this chapter may appear before the council and be heard. Such resolution’s adoption at least once within ten days of the passage thereof in a newspaper of general circulation within the city. The city treasurer/finance director also shall cause notice of intent of such resolution to be mailed to the grantee at least ten days prior to the date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the council shall hear and decide the matter.
C. Standards in Rates and Charges. Except for low income senior citizen subscribers, no rate established shall afford any undue preference or advantage among subscribers, but separate rates may be established for separate classes of subscribers and installation charges may reflect the increased cost of providing service to isolated or sparsely populated areas. (Ord. 02-009 § 59, 2002: Ord. 575 § 11, 1986)
5.28.120 Compensations and guarantee to the city.
A. Franchise Fee.
1. In consideration of the granting and exercise of a franchise to construct and operate a cable communications system in the city, the grantee shall pay to the city during the life of the franchise, an annual franchise fee equivalent to a percentage, as stipulated in the franchise agreement, of the grantee’s gross receipts as defined in Section 5.28.020 of this chapter, for the purpose of defraying administrative expenses associated with the conduct and performance of the city’s authority, responsibilities and police power in the promotion of safety, convenience, comfort, prosperity and general welfare of the citizens of the city, for promotion, development, operation and maintenance of cable related matters as the council may deem appropriate within the city, and in consideration of the city’s granting and the grantee’s exercising a franchise to use the streets, as defined in Section 5.28.020 of this chapter.
2. The percentage payments shall be made in the manner, amounts and at times directed in the franchise agreement.
3. Each such payment shall be accompanied by a statement, in duplicate, verified by the grantee or by a general officer or other duly authorized representative of the grantee, showing in such form and details as the council may require from time to time the facts material to a determination of the amount due.
4. The city or its representative shall have the right to inspect the grantee’s records to determine if proper payments have been made to the city. The costs of such audits shall be borne by the grantee if same results in increasing, by more than two percent, the grantee’s annual payment to the city.
5. No acceptance of any payment shall be construed as release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under this chapter, or the franchise agreement or associated resolution or ordinance, for the performance of any obligation thereunder.
6. The payment to the city by the grantee pursuant to this section for any calendar year shall be in lieu of any license fee or business tax, prescribed by the city for the same period, but only to the extent of such payment.
B. Public Liability and Property Damage Insurance. The grantee shall at all times maintain in full force and effect a policy of insurance in such form as the city may require, executed by an insurance company authorized to write the required insurance and approved by the Insurance Commissioner of the state of Washington, insuring the payment of any sums which the grantee, or city, its officers, boards, commissioners, agents and employees may become obligated to pay by reason of any liability imposed upon them by law for damages because of bodily injury or death, or injury to or destruction of property that may result to any person or property arising out of the construction, operation or maintenance of any facilities pursuant to a franchise issued under this chapter. The sums, payment of which shall be so insured, shall not be less than two million dollars combined single limits including bodily injury liability and property damage liability. Such policy of insurance shall contain a provision that a written notice of cancellation or reduction in coverage of such policy shall be delivered to the city ten days in advance of the effective date thereof; if such insurance is provided by a policy which also covers the grantee or another entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. A certificate of insurance acceptable to the city shall be filed with the city treasurer/finance director.
C. Worker’s Compensation. Upon being granted a franchise, and upon filing of the acceptance required under Section 5.28.050 of this chapter, the grantee shall file with the city treasurer/finance director and shall thereafter, during the entire term of such franchise, maintain in full force and effect worker’s compensation insurance coverage in at least the minimum amounts required by law. If a grantee fails to obtain or maintain such required insurance coverage, the city, may without notice to the grantee, obtain, at the grantee’s sole expense, such coverage, or forthwith terminate, without prior notice, the franchise as granted.
D. Faithful Performance Bond.
1. The grantee may be required to, at his sole expense, at the time of acceptance of a franchise, file with the city, and unless otherwise authorized by the council, at all times thereafter maintain in full force and effect, an acceptable corporate surety bond, in duplicate, in the amount of three hundred thousand dollars, effective for the entire term of the franchise, and conditioned that in the event the grantee shall fail to comply with any one or more of the provisions of a franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond, any damages suffered by the city as a result thereof, including the full amount of any compensation, indemnification or cost of removal or abandonment of property as prescribed by Section 5.28.070G of this chapter or subsection A of this section which may be in default, up to the full amount of the bond; such condition to be a continuing obligation for the duration of a franchise and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of a franchise by the grantee or from its exercise of any privilege granted in this chapter.
2. Neither the provisions of this section, any bond accepted by the city pursuant thereto, nor any damages recovered by the city thereunder shall be construed to excuse faithful performance by the grantee or to limit liability of the grantee under a franchise or for damages, either to the full amount of the bond or otherwise.
3. If, at any time during the term of the franchise, the condition of the corporate surety shall change in such a manner as to render the bond unsatisfactory to the city, the grantee shall replace such bond by a bond of like amount and similarly conditioned, issued by a corporate surety satisfactory to the city. In the event the grantee’s obligations under a franchise shall so warrant, the council, from time to time, may authorize or require appropriate adjustments in the amount of the bond. For example, the amount of the bond may be reduced by the grantee, with the prior approval of the council, at satisfactory completion of system construction, upgrade and/or extension, as may be set forth in the franchise agreement.
E. Security Fund. The city may in the franchise agreement require the establishment by the grantee of an insured account as security for the faithful performance by the grantee of all the provisions of the franchise, and compliance with all orders, permits and directions of any agency of the city having jurisdiction over its acts or defaults under the franchise, and the payment by the grantee of any claims, liens, payments and taxes due the city which arise by reason of the construction, operation or maintenance of the system. The security fund, if required, to be administered as follows:
1. Within thirty days after the effective date of the franchise, the grantee shall deposit into an insured account, established by the city, and maintain on deposit throughout the term of the franchise, an amount of dollars as set forth in the franchise agreement, for the purpose set forth in this chapter. The grantee shall have the right to earn interest on funds deposited in the security fund.
2. Within thirty days after notice to it that any amount has been withdrawn by the city from the security fund pursuant to this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.
3. If the grantee fails after ten days notice to pay the city any taxes or payments due and unpaid or, fails to repay to the city, within such ten days, any damages costs or expenses which the city shall be compelled to pay by reason of any act or default of the grantee in connection with a franchise; or fail after thirty days notice by the city of such failure to comply with any provision of the franchise which the city reasonably determines can be remedied by an expenditure of the security, the city may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the city shall notify the grantee of the amount and date thereof.
4. The security fund deposited pursuant to this section shall become the property of the city in the event that a franchise is cancelled by reason of the default of the grantee or revoked for cause. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, or upon termination of the franchise at an earlier date, provided that there is then no outstanding default on the part of the grantee.
5. The city may, at its sole discretion, upon the grantee’s successful completion of system construction, reduce the security fund to a lesser required amount as set forth in the franchise agreement, and refund the difference to the grantee.
6. The rights reserved to the city with respect to the security fund are in addition to all other rights of the city whether reserved by a franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the city may have.
F. Indemnification to City.
1. By accepting a franchise, the grantee shall be deemed to have agreed to indemnify and hold harmless the city, its officers, boards, commissions, agents, consultants and/or employees against and from all claims, demands, causes of actions, suits, proceedings, damages (including but not limited to, damages to city property and damages arising out of copyright infringements, and damages arising out of any failure by the grantee to secure consent from the owners, authorized distributors or licensees of programs to be delivered by the grantee’s cable communications system), and regardless of the merit of any of the same, and against all liability to others, and against any loss, costs and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, except witness or consultant fees, court costs, per diem expense, traveling and transportation expense or other costs or expenses arising out of or pertaining to the exercise of the enjoyment of any franchise under this chapter by the grantee, or the process of granting thereof by the city, irrespective of the amount of the bond designated in subsection D of this section.
2. Except as specified in subsection F1 of this section, the grantee by accepting a franchise, and the grantor by granting a franchise, shall be deemed to have agreed to indemnify and hold each other, its officers, boards, commissions, agents, consultants and/or employees, harmless against and from all other claims, demands, causes of actions, suits, proceedings, damages, costs or liabilities of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to others, and against any loss, costs and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, incurred as a result of such indemnifying party’s negligence or willful misconduct.
3. The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive or demand rendered, made or issued against the grantee, the city, its officers, boards, commissions, agents, consultants or employees in any of these premises and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, security deposit, undertaking or other assurance required under this chapter or otherwise; provided, that neither the grantee nor the city shall make or enter into any settlement of any claim, demand, cause of action, action, suit or other proceedings, without first obtaining the written consent of the other. (Ord. 02-009 § 60, 2002: Ord. 575 § 12, 1986)
5.28.130 Property and records—Inspection.
A. Examination of Property. At all reasonable times following reasonable notice, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the city, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any maps or records are not kept in the city, and if the council shall determine that an examination thereof is necessary or appropriate, then travel and maintenance expense necessarily incurred in making such examination shall be paid by the grantee.
B. Reports, Records and Plans.
1. The grantee shall prepare and furnish to the city treasurer/finance director at the times and in the form prescribed by such officer, such reports with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the city or any of its officers in connection with the franchise.
C. The grantee shall at all times make and keep in the city full and complete plans and records showing the exact location of all cable communications system equipment installed or in use in the streets and other public places in the city. The grantee shall file with the city’s director of public works, on or before the last day of June of each year, a current map or set of maps drawn to scale, showing all cable communications system equipment installed and in place in streets and other public places in the city. (Ord. 02-009 § 61, 2002: Ord. 575 § 13, 1986)
5.28.140 Adoption of rules and regulations.
At any time, the council may, as necessary, adopt rules, regulations and standards governing the operation of cable communications systems in the city, consistent with the provisions of this chapter, and the franchise agreement. Such rules, regulations and standards may apply to and govern the operations of the grantee of any cable communications franchise, and are expressly declared to be a part of any such franchise. Prior to adopting any such rule, regulation or standard, the council shall conduct a duly noticed hearing thereon. At the time set for such hearing, or at any adjournment thereof, the council, by resolution, may adopt, amend or modify such rules and regulations. The standards adopted may govern engineering, construction, installation, service, technical performance, maintenance and performance testing of all cable communications systems in the city. (Ord. 575 § 14, 1986)
5.28.150 Amendments to provisions.
The council shall amend this chapter and any franchise issued thereunder, upon its own motion or the application of a grantee whenever amendment is necessary to enable the grantee to utilize new developments in cable communications, television or radio signal transmission which would improve and update cable communications service in the city, or to comply with any modifications in the Rules of the FCC. Amendments to Section 76.31 of the FCC Rules will be incorporated into this chapter within one year of their adoption or at the time of franchise renewal, whichever comes first. No amendment shall be adopted except after full open public hearing afforded due process, and no amendment substantially amending the existing rights and obligations of the grantee shall be adopted without the grantee’s consent. (Ord. 575 § 15, 1986)
5.28.160 Violations.
A. Unlawful Operation. It shall be unlawful for any person to construct, install or maintain within any public right-of-way in the city, or within any other public property of the city, or within any privately owned area within the city which has not yet become a public right-of-way but is designated as proposed right-of-way on any tentative subdivision map approved by the city, equipment or facilities for distributing any television signals or radio signals through a cable communications system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
B. Unlawful Connections. It is unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise with any part of any cable communications system within the boundaries of the city for the purpose of enabling himself/herself or others to receive or use any television signal, radio signal, picture, program, sound, information or other system service without payment to the owner of such system. A violation of this section may be punishable by imprisonment for a period not to exceed six months or a fine not to exceed five hundred dollars, or both. A grantee aggrieved by violation or threatened violation of this section may bring a civil action under this chapter in any court of appropriate jurisdiction, to enjoin any such violation and to recover, in case of an actual violation, the greater of treble the actual damages or five hundred dollars.
C. Unlawful Tampering. It is unlawful for any person, without the consent of the grantee, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs, sound, information, data or other system device. A violation of this section may be punishable by imprisonment for a period not to exceed six months or a fine not to exceed five hundred dollars, or both. A grantee aggrieved by violation or threatened violation of this section may bring a civil action under this chapter in any court of appropriate jurisdiction, to enjoin any such violation and to recover, in case of an actual violation, the greater of treble the actual damages or five hundred dollars. (Ord. 575 § 16, 1986)
5.28.170 Fines and penalties.
The city may levy fines and other penalties for failure to comply with the provisions of this chapter and the franchise agreement, not to exceed those limits set forth in the franchise agreement. (Ord. 575 § 17, 1986)
5.28.180 Notices to grantee.
Every direction, notice or order to be served upon a grantee shall be hand delivered or sent by certified mail to the local office described in Section 5.28.100 of this chapter. Every notice to be served upon the city shall be hand delivered, or sent by certified mail, to the city treasurer/finance director at: City Hall, located at 302 East Main Street, Battle Ground, Washington, 98604. The delivery of such shall be deemed to have been at time of receipt. (Ord. 02-009 § 62, 2002: Ord. 575 § 18, 1986)