Chapter 3.40 FRANCHISE REGULATIONS

It is the purpose of this chapter to regulate in the public interest the operation of cable systems and their use of the public streets by establishing procedures for the granting and termination of franchises, by prescribing rights and duties of operators and users of cable systems, and by providing generally for cable service to the citizens of Enumclaw. (Ord. 1841 § 1, 1995).

3.40.020 Definitions.

A. “Access channels” (public, educational or governmental access facilities) means:

1. Channel capacity designated for public, educational, government use; and

2. Facilities and equipment for the use of such channel capacity.

B. “Access facilities” means materials and equipment for the use of such channel capacity.

C. “The Act” collectively means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 as amended.

D. “Addressability” means the ability of a system allowing a franchisee to authorize by remote control customer terminals to receive, change or to cancel any or all specified programming.

E. “Applicant” means any person or entity that applies for a franchise.

F. “Basic cable service” means all signals of domestic television broadcast stations provided to any subscriber (except a signal secondarily transmitted by satellite carrier beyond the local service area of such station, regardless of how such signal is ultimately received by the cable system); any public, educational, and governmental programing required by the franchise to be carried on the basic tier; and any additional video programing signals and service added to the basic tier by a cable operator.

G. “Cable services” means:

1. The one-way transmission to subscriber of video programming or other programming service; and

2. Subscriber interaction, if any, which is required for the selection by the subscriber of such video programming.

H. “Channel” means a single path or section of the spectrum which carries a television signal.

I. “Character generator” means a device used to generate alphanumerical programming to be cablecast on a cable channel.

J. “City” means the city of Enumclaw, a municipal corporation of the state of Washington.

K. “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers.

L. “Council” means the present governing body of the city or any future board constituting the legislative body of the city.

M. “Data transmission” means:

1. The movement of encoded information by means of electrical or electronic transmission systems;

2. The transmission of data from one point to another over communications channels.

N. “Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple family residential units.

O. “FCC” means the Federal Communications Commission, a regulatory agency of the United States government.

P. “Fiber optics” means the technology of guiding and projecting light for use as a communications medium.

Q. “Franchise” means the initial authorization, or renewal thereof, issued by the franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.

R. “Franchisee” means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in city ordinance.

S. “Gross revenues” means any and all receipts and revenues received directly from provision of cable service over the cable system including, but not limited to, other sources of revenues such as local and national advertising and Home Shopping Channel revenues, other than transactions related to real property receipts by a franchisee not including any taxes on services furnished by a franchisee, imposed on any subscriber or used by any governmental unit, agency or instrumentality and collected by a franchisee for such entity; provided also that net uncollectible debts are not considered as revenue in this definition.

T. “Headend” means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.

U. “Installation” means the connection of the system from feeder cable to subscribers’ terminals.

V. “Institutional networks (I-Nets)” means a cable communications system designated principally for the provision of nonentertainment services to schools, public agencies or other nonprofit agencies, separate and distinct from the subscriber network, or on secured channels of the subscriber network.

W. “Interactive services” means services provided to subscribers where the subscriber either:

1. Both receives information consisting of either television or other signals 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

2. Transmits signals to any other location for any purpose.

X. “Office” means the person or entity designated by the city as being responsible for the administration of a franchise for the city.

Y. “Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.

Z. “Property of franchisee” means all property owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this chapter.

AA. “Proposal” means the response, by an individual or organization, to a request by the city regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.

BB. “Public way” or “street” means the surface, the air space above the surface and the area below the surface of any public street, including, but not limited to, any public alley, boulevard, drive, easement, right-of-way or sidewalk under the jurisdiction of the city.

CC. “Subscriber” means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee’s express permission. (Ord. 1841 § 2, 1995).

3.40.030 Terms of franchise.

A. Authority to Grant Franchise. The council may grant a nonexclusive franchise for all or any defined portion of the city. The service area shall be the entire area defined in a franchise agreement between the city and a franchisee. The initial service area shall be that portion of the franchise area scheduled to receive initial service, as stated in the franchise agreement.

B. Grant. In the event that the council shall grant to a franchisee a nonexclusive, revocable franchise to construct, operate, maintain and reconstruct a cable communications system within the franchise area, or renewal of an existing franchise, said franchise shall constitute both a right and an obligation to provide the services of a cable communications system as required by the provisions of this chapter and the franchise agreement. The franchise agreement shall include those provisions of a franchisee’s application for franchise that are finally negotiated and accepted by the council and a franchisee.

Any franchise granted under the terms and conditions contained herein shall be consistent with federal, state and local laws and regulations. In the event of conflict between the terms and conditions of the franchise and law or statutory requirements, the law or statutory requirements shall control.

Any franchise granted is hereby made subject to the general ordinance provisions now in effect or hereafter made effective. Nothing in the franchise shall be deemed to waive the requirements of other codes and ordinances of the city with regard to permits, fees to be paid or manner of construction.

C. Franchise Required. No cable communications system shall be allowed to occupy or use the streets in the franchise area or be allowed to operate unless the city has granted a franchise for such system in accordance with the provisions of this chapter.

D. Establishment of Franchise Requirements. The city may establish requirements reflecting changing technology, economic or legal issues as appropriate that may affect a new or renewal franchise at such time that these applications are received.

E. Duration. The term of any new franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the franchise agreement, unless terminated sooner as hereinafter provided.

F. Franchise Nonexclusive. Any franchise granted shall be nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises for a cable communications system as it deems appropriate, provided however, that such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to any franchisee. (Ord. 1841 § 3, 1995).

3.40.040 Franchise issuance.

Prior to the granting of a franchise, the city council shall conduct a public hearing to determine the following:

A. Initial Franchise.

1. That the public will be benefited by the granting of a franchise to the applicant;

2. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain a cable television system in the area;

3. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the city;

4. That the applicant will comply with all terms and conditions placed upon a franchisee by this chapter;

5. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise;

6. The capacity of public rights-of-way to accommodate the cable system;

7. The present and future use of the public rights-of-way to be used by the cable system; and

8. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public;

9. Any other condition that the city may deem appropriate.

B. Renewal Franchise.

1. That the applicant has substantially complied with the term of the existing franchise;

2. That the quality of the applicant’s previous service has been reasonable in light of community needs;

3. That an applicant’s proposal is reasonable to meet the future cable-related community needs and interests taking into account the cost of meeting such needs and interests;

4. The capacity of public rights-of-way to accommodate the cable system;

5. The present and future use of the public rights-of-way to be used by the cable system;

6. The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; and

7. Any other condition that the city may deem appropriate. (Ord. 1841 § 4, 1995).

3.40.050 Council determinations – Rejection or further consideration of application.

The applicant shall be afforded full opportunity to participate in the hearing, including the right to introduce evidence, to require the production of evidence, and to question witnesses.

At the completion of the hearing, the council shall issue a written decision, stating its reasons for granting or denying the application, based upon the record of such proceeding, and shall transmit a copy of such decision to the applicant. (Ord. 1841 § 5, 1995).

3.40.060 Procedure for renewal of franchise.

The procedure for granting any franchise pursuant to this chapter shall be as follows:

A. Upon receipt of any application for the granting or renewal of such a franchise, the council shall schedule a public hearing and cause notice thereof to be published at least once a week for each of two weeks preceding the hearing in the newspaper of general circulation within the city, which notice shall contain the same information as described in EMC 3.40.040, Franchise Issuance.

B. The council shall consider public testimony and comment in the same manner as set forth in EMC 3.40.040, Franchise Issuance, but shall instead consider the following as criteria for granting or denying any franchise renewal:

1. Whether the applicant has substantially complied with the material terms of the existing franchise and with applicable law;

2. Whether the quality of the applicant’s service, including signal quality, response to consumer complaints and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in light of community needs;

3. Whether the applicant has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the operator’s proposal or application; and

4. Whether the applicant’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

C. In any hearing for a franchise renewal, the applicant shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses.

D. At the completion of a proceeding under this section, the council shall issue a written decision stating the reasons for such decision granting or denying the application for renewal based upon the record of such proceeding, and shall transmit a copy of such decision to the applicant. (Ord. 1841 § 6, 1995).

3.40.070 Transfer of ownership.

A franchisee’s right, title, or interest in the franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an affiliate, without the prior consent of the franchising authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment of any rights, title, or interest of the franchisee in the franchise or cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral does not specifically affect the assets of this franchise, or if the said transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

In any transfer of a franchise requiring city approval, the applicant must show technical ability, financial capability, legal and general qualifications as determined by the city. Applicant must agree to comply with all provisions of the franchise. Costs associated with the transfer process shall be reimbursed to the city.

An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

Regardless of the circumstances, a franchisee shall promptly notify the city prior to any proposed change, transfer, or acquisition by any other party of a franchisee’s company. In the event that the city adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the city may cancel the franchise. (Ord. 1841 § 7, 1995).

3.40.080 Franchise fee.

A franchisee shall make payment to the city on a quarterly basis (on or before the thirtieth day of each January, April, July and October), in a sum equal to five percent of the franchisee’s gross revenues from the operation of the cable system. The city may raise the franchise fee, if so permitted by federal and/or state law. Prior to implementation of any increase in franchise fees the operator may request a public hearing by the city council to discuss said increases. Following such a hearing the city council may amend or confirm such increases. The city shall have the right, upon reasonable advance notice, to inspect the books of a franchisee for this purpose, during normal business hours. (Ord. 1841 § 8, 1995).

3.40.090 Indemnity.

By acceptance of a franchise granted pursuant to this chapter and the rights and privileges thereby granted, a franchisee shall covenant and agree with the city for itself, its successors and assigns, to at all times, defend, indemnify and hold harmless the city, its officers, officials, employees and agents from any and all claims, actions, suits, liability, loss, cost, expenses or damages of every kind or description which may accrue to or be suffered by any person or persons or property, and to appear and defend at its own cost and expense, any action instituted or begun against the city for damages by reason of a franchisee’s construction, reconstruction, readjustment, repair, maintenance, operation or use of the streets of the city, or any act(s) or omission(s) of a franchisee, its successors or assigns, exercising any privilege conferred by this chapter or by such franchise; provided, however, that in the event any such claim, action, suit or demand be presented to or filed with the city or any court having jurisdiction, the city shall notify franchisee thereof, and the franchisee shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, or to defend the same at its sole cost and expense, by attorneys of its own decision.

In case judgment shall be rendered against the city in any such suit or action, each party shall fully satisfy such judgment to the extent of its comparative fault within 90 days after such action or suit shall have been finally determined, if determined adversely to either party. (Ord. 1841 § 9, 1995).

3.40.100 Bonds.

A franchisee shall promptly repair or cause to be repaired any damage to city property caused by a franchisee or any agent of a franchisee. A franchisee shall comply with all present and future ordinances and regulations regarding excavation or construction and, if deemed necessary by the city, shall be required to post a performance bond or other surety acceptable to the city in an amount specified by the city in favor of the city warranting that all restoration work will be done promptly and in a workmanlike manner and that penalties, if any, after final adjudication are paid to the city within 90 days of such finding. (Ord. 1841 § 10, 1995).

3.40.110 Insurance.

A franchisee shall furnish the city with a certificate of comprehensive liability insurance naming the city as an additional insured. The amount of such policy shall be as deemed appropriate by the city. Such insurance must be in place no later than the date of acceptance of a franchise by a franchisee. This insurance shall be maintained in full force at the franchisee’s expense throughout the period of the franchise. The city may delineate more specific details concerning such insurance prior to the award of a given franchise. (Ord. 1841 § 11, 1995).

3.40.120 Franchisee’s obligations to the public.

A franchisee, in the use of the public streets and rights-of-way, shall ensure that:

A. The safety, functioning and appearance of the property and the convenience and safety of persons will not be adversely affected by the installation or construction of facilities necessary for a cable system;

B. The cost of the installation, construction, operation or renewal of such facilities be borne by a franchisee or subscriber, or a combination of both; and

C. The owner of property will be justly compensated by a franchisee for any damages caused by the installation, construction, operation or removal of such facilities by the cable operator.

It shall be a franchisee’s sole responsibility when cable passes over or under private or publicly owned property to obtain all necessary permission from the owner thereof. (Ord. 1841 § 12, 1995).

3.40.130 City rights to make improvements.

Nothing in this chapter shall be construed to prevent the city or any local improvement district from sewering, paving, grading, altering or otherwise improving or re-improving any of the streets of the city, including the installation of city-owned utilities, and the city shall not be liable for any damages resulting to a franchisee by reason of the performance of such work or by exercise of such rights by the city. This chapter shall not be construed so as to deprive the city of any rights or privileges which it now has, or which may hereafter be conferred upon it to regulate and control the use of the streets.

A franchisee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate or remove from any street, right-of-way or any other public place, any of its installations when so required by the city for reasons of traffic conditions or public safety, street vacations, dedications of new rights-of-ways and the establishment and improvement thereof, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity.

The city will make its best effort and attempt to design or redesign streets, avenues, alleys, public places or ways, and other city utilities to minimize the impact thereof on a franchisee’s existing facilities, including the need to require a franchisee’s facilities to be relocated; provided, however, the city shall make the final determination on the need for relocation of a franchisee’s facilities.

Whenever the city determines that any of the above circumstances necessitate the relocation of a franchisee’s then existing facilities, the city shall provide a franchisee with at least 60 days written notice unless an emergency exists requiring such relocation, which shall be completed by a franchisee at no cost and within the time frame set by the city. Upon the franchisee’s failure to complete relocation to its installations and facilities so directed, the city may remove same at a franchisee’s expense. (Ord. 1841 § 13, 1995).

3.40.140 Permits required, terms of use and occupancy of streets.

The terms and conditions of a franchisee’s use and occupancy of public streets and public rights-of-way in the city shall be as follows:

A. Safety Requirements. A franchisee, in accordance with applicable national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.

All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

The city reserves the general right to see that the system of a franchisee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other applicable regulation is found to exist by the city, the city will, after discussions with a franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs are not made within the established time frame, the city may make the repairs itself or have them made and collect all reasonable costs thereof from a franchisee.

B. Construction Notification. Upon application for each construction permit a franchisee will submit to city its plan for advance notification for the proposed construction project. In the event that an emergency situation arises which precludes such advance notification, a franchisee shall subsequently inform the city of the nature of the extraordinary event and the action taken.

C. Undergrounding. In any area of the city in which telephone, electric power wires and cables have been placed underground, a franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other conductors thereon, but shall lay such wires, cables or conductors underground in such manner as is required by the city. If an ordinance is passed creating a local improvement district which involves placing underground certain utilities including that of a franchisee which are then located overhead on poles and suspended wires, a franchisee shall participate in such underground project and shall remove poles, cables and wires from the surface of the streets within such district and shall place the same underground in conformity with the requirements of the public works director.

D. Pole Installation and Attachment – Joint Use. All poles, cables, wires, antennae, conduits or appurtenances shall be constructed and erected in a neat, workmanlike manner and shall be of such height and occupy such position as the director of public works shall approve. A franchisee erecting or maintaining poles shall allow anyone constructing under the authority of this chapter and the city, joint use of its poles upon payment of a reasonable proportion of the cost of such poles installed and shall obey any order issued by the director of public works relative to the joint use of poles.

E. Building Moving. Whenever a person shall have obtained permission from the city to use any street for the purpose of moving any building, a franchisee, upon 14 days’ written notice from the city, shall raise or remove, at the expense of the permittee desiring to move the building, any of a franchisee’s wires which may obstruct the removal of such building; provided, that the moving of such building shall be done in accordance with regulations and general ordinances of the city. Where more than one street is available for the moving of such building, the building shall be moved on such street as shall cause the least interference, which path of least interference shall be determined by the director of public works.

F. Relocation of Facilities. A franchisee shall, unless an emergency arises, upon 60 days’ notice, at its own cost and expense, move any underground, surface or overhead construction which interferes with any local improvement district work or with any construction for public purposes authorized or ordered by the city.

G. Abandonment of Facilities. A franchisee accepting a franchise under the terms of this chapter for the installation of ducts, utility tunnels, vaults, manholes, poles, wires or any other appurtenances, shall remove such installation when it is no longer required or used and the director of the public works department orders the removal thereof.

H. Tree Trimming. Upon approval of the director of public works, a franchisee shall have the authority to trim trees upon and overhanging streets, public ways and public places in the franchise area so as to prevent the branches of such trees from coming into contact with a franchisee’s wires and cables, and if necessary, to clear a microwave path. A franchisee shall be responsible for debris removal from such activities.

I. Dangerous Conditions – Authority of City to Abate. Whenever a franchisee’s construction, installation or excavation of facilities authorized by this chapter has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public places, streets, utilities or city property, or endangers the public, the public works director may direct a franchisee, at its own expense, to take actions to protect the public, adjacent public places, city property or street utilities; and such action may include compliance within a prescribed time.

In the event that a franchisee fails or refuses to promptly take the actions directed by the city, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the city may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, or actions regarded as necessary safety precautions; and a franchisee shall be liable to the city for the costs thereof.

J. Restoration of Streets. After construction, installation, maintenance or repair of the facilities authorized by this chapter or any permit obtained by virtue of a franchise granted under this chapter, a franchisee shall leave all streets, avenues, highways or public places in as good and safe condition in all respects as they were before the commencement of such work by a franchisee. The public works director shall have final approval of the condition of such streets and public places after completion of construction.

K. Reimbursement. Franchisee shall reimburse the city for all actual administrative expenses incurred by the city that are directly related to receiving and approving a permit or license and to inspect plans and construction. Where the city incurs actual administrative expenses for review or inspection of activities undertaken through the authority granted in this franchise (and which such expenses are not duplicative of expenses which are reflected in some other city-imposed charge or fee), franchisee shall pay such expenses directly to the city; provided, however, that the city shall provide franchisee an estimate of its expenses when those expenses are expected to exceed four hours at the city’s regular hourly inspection rate. (Ord. 1841 § 14, 1995).

3.40.150 Compliance.

Construction, maintenance and operation of a franchisee’s system including house connections, shall be in accordance with the provisions of this chapter and in accordance with the provisions of all other applicable codes and ordinances, including the National Electrical Code, and a franchisee shall comply with all applicable state and federal laws and the rules and regulations of the FCC relating to cable television systems. (Ord. 1841 § 15, 1995).

3.40.160 Rates.

Subject to federal, state and local law, the city may establish and regulate the rates or charges for providing cable service and establish rate regulation procedures. In the event that federal laws are subsequently enacted that would allow the city to review, regulate and establish the rate charged to a subscriber for cable services, the city may thereafter take such action.

Within 30 days after the grant of any franchise hereunder a franchisee shall file with the city a complete schedule of all rates to be charged to subscribers. Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee, a franchisee shall provide to the city and all subscribers a minimum of 30 days’ written notice of the new schedule of rates to be charged. (Ord. 1841 § 16, 1995).

3.40.170 Nondiscrimination.

A franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules including discounts to senior citizens and disabled persons of low income to which any customer coming within such classification would be entitled; and provided further that connection and/or service charges may be waived or modified during promotional campaigns of a franchisee.

A franchisee will not deny access to cable communications service to any group of potential residential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 1841 § 17, 1995).

3.40.180 Equalization of civic contributions.

In the event of one or more franchises being granted the city may require that such subsequential franchisees pay to the city an amount proportionally equal to franchising costs contributed by the initial franchisee. These costs may include but are not limited to such features as access and institutional network costs, bidirectional or equivalent cable installed to municipal buildings and similar expenses.

On the anniversary of the grant of each later awarded franchise, such franchisees shall pay to the city an amount proportional to the amount contributed by the original franchisee, based upon the amount of subscribers held by such franchisees.

Additional franchisees shall provide all PEG access channel(s) and the emergency override system currently available to the subscribers of existing franchisees. In order to provide these access channels, additional franchisees may interconnect, at their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing franchisee providing the interconnection may require. These interconnection agreements shall be made directly between the franchisees. The city council, in such cases of dispute of award, may be called upon to arbitrate regarding these arrangements. (Ord. 1841 § 18, 1995).

3.40.190 Subordinate to city and prior lawful occupancy.

Any privilege claimed under any such franchise by a franchisee in a street or other public property shall be subordinate to the city’s lawful police powers and to any prior lawful occupancy of the streets or other public property. In addition to the inherent powers of the city to regulate and control any franchise the city issues, the authority granted to it by the Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is hereby reserved to the city to promulgate such additional regulations of general applicability as it may find necessary in the exercise of its lawful powers. (Ord. 1841 § 19, 1995).

3.40.200 No recourse against the city for loss or expense.

A franchisee shall have no recourse whatsoever against the city for any loss, cost, expense or damages arising out of the issuance of a franchise under this chapter or because of the city’s related lawful enforcement actions. (Ord. 1841 § 20, 1995).

3.40.210 Subsequent action by state or federal agencies.

If any subsequent federal, state or local law, ordinance or regulation shall require or permit a franchisee to perform any act which may be in conflict with the terms of this chapter, or shall prohibit a franchisee from performing any act in conformance with the terms of this chapter, then as soon as possible following knowledge thereof, a franchisee shall so notify the city. If the council determines that a material provision of this chapter is affected by such changed or new law, ordinance or regulation, the city and a franchisee shall enter into good faith negotiations to modify this chapter to conform with such changed requirements. Failure to complete these negotiations to the satisfaction of both parties within a reasonable time shall constitute a material breach of the franchise, but in no event shall a period of less than 180 days be deemed unreasonable pursuant to this section. (Ord. 1841 § 21, 1995).

3.40.220 Cable system evaluation.

In addition to periodic meetings, the city may require reasonable evaluation sessions at any time during the term of a franchise.

It is intended that such evaluations cover areas such as customer service, response to the community’s cable-related needs, and a franchisee’s performance under and compliance with the terms of a franchise. (Ord. 1841 § 22, 1995).

3.40.230 Record inspection.

Subject to statutory and constitutional limits and two working days’ advance notice, the city reserves the right to inspect the records of a franchisee necessary for the enforcement of a franchise and verification of the accuracy of franchise fee payments at any time during normal business hours provided that the city shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of a franchisee. Such documents shall include such information as financial records, subscriber records within the context of Section 631 of the Act, and plans pertaining to a franchisee’s operation in the city. (Ord. 1841 § 23, 1995).

3.40.240 Reports.

A franchisee shall furnish, upon request, a report of its activities as appropriate. Such report shall include:

A. Most recent annual report;

B. A copy of the 10-K Report, if required by the Securities and Exchange Commission;

C. The number of homes passed;

D. The number of subscribers with basic services;

E. The number of subscribers with premium services;

F. The number of hook-ups in period;

G. The number of disconnects in period;

H. Total number of miles of cable in city;

I. A summary of complaints received by category, length of time taken to resolve and action taken to provide resolution;

J. Copies of all FCC complaint logs;

K. A statement of its current billing practices, and a sample copy of the bill format;

L. A current copy of its subscriber service contract;

M. Report on operations. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate. (Ord. 1841 § 24, 1995).

3.40.250 Termination and revocation.

If a franchisee willfully violates or fails to comply with any of the material provisions of this franchise, the city shall give written notice to a franchisee of the alleged noncompliance of its franchise. A franchisee shall have 45 days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within 45 days, to present to the city a plan of action whereby such default can be promptly cured.

If such default continues beyond the applicable dates agreed to for such cure, the city shall give a franchisee written notice that all rights conferred under this chapter and its franchise may be revoked or terminated by the council after a public hearing. A franchisee shall be entitled to not less than 30 days’ prior notice of the date, time and place of the public hearing. The city may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling a franchisee to comply with the provisions of the franchise and recover damages and costs incurred by the city by reason of a franchisee’s failure to comply. (Ord. 1841 § 25, 1995).

3.40.260 Remedies to enforce compliance.

In addition to any other remedy provided herein, the city reserves the right to pursue any lawful remedy to compel or force a franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the city shall not prevent the city from thereafter initiating the termination or revocation procedures established in this chapter. (Ord. 1841 § 26, 1995).

3.40.270 Interpretation.

A franchisee shall comply with all pertinent rules, regulations and requirements of the FCC, or any other federal or state body or agency having jurisdiction in regard to cable television systems. (Ord. 1841 § 27, 1995).

3.40.280 Effect of prior franchises.

Nothing contained in this chapter shall abridge, impair, alter, modify or in any way affect any right, privilege or immunity of either a franchisee or the city conferred by or arising under any cable franchise granted prior to and remaining in effect on the effective date of the ordinance; provided, that the acceptance of a franchise granted under this chapter for any cable service area shall be deemed to constitute the surrender by a franchisee of the right to operate a cable television system in that cable service area under any prior franchise. (Ord. 1841 § 28, 1995).

3.40.290 Incorporation by reference into each franchise.

The Cable Communications Master Ordinance shall be incorporated in its entirety by reference into and become a part of each and every cable television franchise granted by the city. (Ord. 1841 § 29, 1995).

3.40.300 Severability.

Each section, subsection or other portion of this chapter is severable, and the invalidity of any section, subsection or other portion shall not invalidate the remainder. (Ord. 1841 § 30, 1995).

3.40.310 Inconsistency.

If any portion of this chapter should be inconsistent or conflict with any rule or regulation now or hereafter adopted by the FCC or other federal law, then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other federal law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in effect; provided the remaining provisions of this chapter shall not be affected thereby. (Ord. 1841 § 31, 1995).

Prior legislation: Ords. 1263, 1545 and 1798.