Chapter 7.12 CABLE TELEVISION COMMUNICATIONS*

*Editor’s note – Ord. No. 3107, § 1, adopted May 4, 1993, repealed former ch. 7.12, §§ 7.12.010 – 7.12.270, which pertained to similar subject matter. Section 2 of said Ord. No. 3107 enacted a new ch. 7.12 to read as herein set out. See the Code Comparative Table for a detailed analysis of inclusion.

Cross reference(s) – Department of public works, Ch. 2.28; environmental policy, Ch. 11.03.

7.12.010 Short title.

This chapter shall constitute the “Cable Communications Ordinance” of the city and may be referred to as such.

(Ord. No. 3107, § 2, 5-4-93)

7.12.020 Purpose.

It is the purpose of this chapter to regulate in the public interest the operation of cable communications 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 communications systems, and by providing generally for cable communications service to the citizens of Kent.

(Ord. No. 3107, § 2, 5-4-93)

7.12.030 Definitions.

For the purposes of this chapter, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense shall include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.

Access channels means those channels designated and maintained by a cable communications system for programming not originated or procured by the system, including, but not limited to, local government, educational and public access channels.

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.

Affiliate means a condition of being united, being in close connection, allied, or attached as a member or branch.

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

Basic services means those broadcast and nonbroadcast services provided by the cable franchisee at the lowest monthly charge as defined by the act or rules now or subsequently adopted by the FCC.

Cable services, cable communications system, or CATV system. These words are used interchangeably for the purpose of this chapter and are terms describing a system employing antennae, microwave, wires, wave-guides, coaxial cables or other conductors, equipment, or facilities designed, constructed or used for the purpose of:

1. Collecting and amplifying local and distant broadcast, television, or radio signals and distributing and transmitting them;

2. Transmitting original cablecast programming not received through television broadcast signals;

3. 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; and

4. Transmitting and receiving all other signals: digital, voice and audio-visual.

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

Character generator means a device used to generate alpha-numerical programming to be cablecast on a cable channel.

City means the city of Kent, a municipal corporation of the state of Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

Council means the city council of the city of Kent or any future body constituting the legislative body of the city.

Data communications means either (i) the movement of encoded information by means of electrical or electronic transmission systems or (ii) the transmission of data from one (1) point to another over communications channels.

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.

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

Franchise means the authorization granted under this chapter in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a cable communications system within all or a specified area in the city. This term, under any such authorization in whatever form granted, shall not mean and does not include any license or permit required by other laws, ordinances or rules of the city for the privilege of transacting and carrying on a business within the city, or for construction, reconstruction, repair, maintenance or use on, over or under any public rights-of-way.

Franchise agreement means a document entered into between the city and a franchisee that sets forth the terms and conditions under which the franchise will be exercised.

Franchisee means any person, firm or corporation granted a franchise by the city under this chapter and the lawful successor, transferee or assignee of such person, firm or corporation.

Gross revenues means any and all receipts and revenues received directly or indirectly from all sources 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 under this definition.

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

High definition television (HDTV) means a television system that will provide sharper picture definition than the current U.S. Standards, five hundred twenty-five (525) lines per frame.

Insertion point(s) means location(s) where institutional programming can be initiated for distribution throughout the secured portion of the subscriber network.

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

Institutional services means a cable 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.

Interactive services means services provided to subscribers where the subscriber either (i) 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 (ii) transmits signals to any other location for any purpose.

Interconnect means the sharing of video, audio and/or data transmissions between two (2) or more cable systems, institutional networks and/or users.

NCTA means the National Cable Television Association.

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

Person means any natural person and all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, businesses and common law trusts and societies.

Premium services means programming over and above the basic services provided by a franchisee, for which there is an additional charge.

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.

Proposal means the response, by a person, entity or corporation, 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.

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, right-of-way or sidewalk under the jurisdiction of the city.

Subscriber means a person or entity receiving for consideration, directly or indirectly, any service of a franchisee’s cable communications system.

The Act means the Cable Television Consumer Protection and Competition Act of 1992, and any subsequent amendments.

(Ord. No. 3107, § 2, 5-4-93)

7.12.040 Franchise to install and operate.

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 renew 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. No. 3107, § 2, 5-4-93)

7.12.050 Police powers.

Nothing in this chapter or in any agreement awarding a franchise in accordance herewith shall be construed as an abrogation by the city of any of its police powers.

(Ord. No. 3107, § 2, 5-4-93)

7.12.060 Application.

Each application for the granting of an initial franchise to construct, operate or maintain any cable communications system in the city shall be filed with the city clerk, be accompanied by a nonrefundable processing fee in an amount to be determined by the city and shall also contain or be accompanied by the following information:

1. The name, address and telephone number of the applicant;

2. 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 may reasonably be required by the city:

a. The names, residences and business addresses of all officers and directors of the applicant;

b. The names and addresses of all persons having, controlling or being enticed to have or control five (5) percent or more of the ownership of the applicant, either directly or indirectly, and the respective ownership share of each such person;

c. A detailed description of all previous experience of the applicant or the owners of the applicant in providing cable communications and in related or similar fields;

d. A detailed and complete recent financial statement prepared by or under the supervision of certified public accountants, and of any corporation owning a majority or more of the voting stock of the applicant;

e. A detailed financial plan showing the financial resources required to construct and operate the proposed system, together with satisfactory evidence of the availability to applicant of funding requirements in excess of applicant’s own cash resources not otherwise committed;

3. A detailed statement of the proposed plan of operation of the applicant, which shall include:

a. A statement of the area proposed to be served by cable and a proposed time schedule, not in conflict with this chapter, for installation of all equipment necessary to complete energization throughout the entire service area;

b. 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 the classifications including installation charges and service charges, which shall remain in effect for not less than twelve (12) months following the grant of franchise; provided, that a franchisee by this requirement shall not be precluded from initiating a rate revision prior to the twelfth month, to be effective thereafter;

c. A detailed, informative and referenced statement describing the actual equipment and operational standards proposed by the applicant, including when applicable administrative and technical procedures for interconnection of access channels and for safeguarding the privacy of return signals will be installed. In no event shall the operational and performance standards be less than those contained in the rules of the FCC;

d. A copy of any agreement proposed to be entered into between the applicant and any subscriber;

e. A statement setting forth the substance of, and names of persons party to, all agreements existing or proposed between the applicant and any other person which materially relate to or depend upon the granting of the franchise;

4. A copy of any agreement with respect to the franchise area existing between the applicant and any public utility providing for the use of any facilities of the public utility; and

5. Any other reasonable information requested by the city, or its designee, or required by any provision of any other ordinance of the city, or deemed pertinent by the applicant.

(Ord. No. 3107, § 2, 5-4-93)

7.12.070 Public hearing on application.

The council shall, upon receipt of an application for a franchise under this chapter, promptly schedule a public hearing upon the application before the city council and the city clerk shall publish notice thereof in a newspaper of general circulation within the city at least once a week for each of the two (2) weeks preceding such hearing; provided, that no two (2) or more applications shall be considered at any one (1) hearing except by consent of the applicants. The notice shall state the name of each proposed franchisee for each cable district and the place where applications and relevant material are available to the public, and shall set forth the day, hour and place when and where any interested person may file written comments pertaining thereto and/or appear before the council and be heard.

(Ord. No. 3107, § 2, 5-4-93)

7.12.080 Considerations at public hearing.

At the hearing so scheduled or any adjournments thereof, all citizens and other interested parties shall have an opportunity to express their views orally or in writing to the council, and the council shall consider all the views expressed at the public hearing in determining its action upon each franchise application. Written comments, if responsive to written or oral statements of any person filed or made at the hearing, but not otherwise, shall be received up to the conclusion of the fifth business day following the conclusion of the hearing, and be considered by the council. The council shall also give due consideration to:

1. The quality of the service proposed;

2. The experience, character, background and financial responsibility of each applicant and its management and owners;

3. The financial and commercial interests of the applicant, and whether there exists an actual or potential conflict of interest with the interests of the city;

4. The technical and performance quality of equipment;

5. The program proposed for construction; and

6. The applicant’s ability to meet construction and physical requirements and to abide by the terms and requirements of the franchise generally.

In awarding a franchise, the council shall also assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

(Ord. No. 3107, § 2, 5-4-93)

7.12.090 Council determinations – Rejection or further consideration of application.

A. 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.

B. At the completion of the hearing, the council shall state its reasons for granting or denying the application, based upon the record of such proceeding, and shall communicate its decision to the applicant.

(Ord. No. 3107, § 2, 5-4-93)

7.12.100 Procedure for renewal of franchise.

The procedure for granting any franchise other than those contemplated by KCC 7.12.060 and for renewing any franchise granted pursuant to this chapter shall be as follows:

1. 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 (2) weeks preceding the hearing in the newspaper of general circulation within the city, which notice shall contain the same information as described in KCC 7.12.070.

2. The council shall consider public testimony and comment in the same manner as set forth in KCC 7.12.080, but shall instead consider the following as criteria for granting or denying any franchise renewal:

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

b. 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;

c. 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

d. 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.

3. 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.

4. At the completion of a proceeding under this section, the council shall state its reasons for granting or denying the application for renewal based upon the record of such proceeding, and shall communicate its decision to the applicant.

(Ord. No. 3107, § 2, 5-4-93)

7.12.110 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 fifty (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. No. 3107, § 2, 5-4-93)

7.12.120 Acceptance of franchise.

A. No franchise granted under this chapter shall become effective for any purpose unless and until a franchisee has filed an acceptance in writing. Such written acceptance, which shall be in form and substance approved by the city attorney, shall also be and operate as an acceptance of each and every term, condition and limitation contained in this chapter or in such franchise.

B. The written acceptance shall be filed by a franchisee not later than sixty (60) days following the effective date of the ordinance granting such franchise.

C. In the case of the failure to file such written acceptance as required by this section, a franchisee shall be deemed to have rejected and repudiated the franchise and the city may invite and thereafter receive applications from persons desiring to serve the subject area.

(Ord. No. 3107, § 2, 5-4-93)

7.12.130 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 ninety (90) days of such finding.

(Ord. No. 3107, § 2, 5-4-93)

7.12.140 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 (5) 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. No. 3107, § 2, 5-4-93)

7.12.150 Franchise costs.

A franchisee shall pay to the city upon acceptance of any franchise granted hereunder, the city’s out-of-pocket costs associated with the franchising process. The city shall provide the franchisee an itemization of its anticipated costs. Such payment is not deductible or considered in lieu of franchise fee payments. Payment is due within thirty (30) days of acceptance of any franchise granted under this chapter.

(Ord. No. 3107, § 2, 5-4-93)

7.12.160 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 ninety (90) days after such action or suit shall have been finally determined, if determined adversely to either party.

(Ord. No. 3107, § 2, 5-4-93)

7.12.170 Insurance.

So long as a franchisee shall possess any right or privilege granted pursuant to this chapter or franchise, and before the commencement of any work thereunder, a franchisee shall deliver to the director of public works for filing with the city clerk, a certificate of insurance showing that it has procured and is at all times a policy of public liability insurance, maintaining subject to the approval of the city attorney naming the city as an additional insured, protecting the city against claims for injuries or in connection with the performance of the franchise by a franchisee, its agents, representatives, employees or subcontractors. The policy of insurance shall evidence policy limits as follows:

1. Automobile liability insurance with limits no less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage; and

2. Commercial general liability insurance written on an occurrence basis with limits no less than one million dollars ($1,000,000) combined single limit per occurrence and two million dollars ($2,000,000) aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property damage; explosion, collapse and underground (XCU); and employer’s liability.

These limits are listed in 1993 dollars and shall be adjusted as necessary, but in no event less than once every five (5) years, to adjust for inflation.

Any payment of deductible or self insured retention shall be the sole responsibility of a franchisee. Subject to the indemnification provisions of KCC 7.12.160 herein, a franchisee’s insurance shall be primary insurance as respects the city, and the city shall be given thirty (30) days’ prior written notice of any cancellation, suspension or material change in coverage.

(Ord. No. 3107, § 2, 5-4-93)

7.12.180 Franchisee’s obligations to the public.

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

1. 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;

2. 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

3. 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. No. 3107, § 2, 5-4-93)

7.12.190 City’s right 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 reimproving 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 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-way 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 sixty (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. No. 3107, § 2, 5-4-93)

7.12.200 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:

1. 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.

2. Construction notification. Upon application for each construction permit a franchisee will submit to the 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.

3. 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, tables or conductors underground in such manner as 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, 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 city’s public works director.

4. 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 city’s 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 city’s director of public works relative to the joint use of poles.

5. 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 seven (7) 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 (1) 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 city’s director of public works.

6. Relocation of facilities. A franchisee shall, unless an emergency arises, upon thirty (30) 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, all as provided in KCC 7.12.190.

7. 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 city’s director of the public works department orders the removal thereof.

8. Tree trimming. Upon approval of the city’s director of public works, a franchisee shall have the authority to trim overhanging trees upon 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. At the option of the city, and with advance written notice to a franchisee, such debris removal may be done by the city or under its supervision and direction, with reasonable costs to be borne by a franchisee.

9. Dangerous condition, authority to 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 city’s public works director may direct a franchisee, at the franchisee’s 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 to maintain the lateral support thereof, or other actions regarded as necessary safety precautions; and a franchisee shall be liable to the city for the costs thereof.

10. 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 city’s public works director shall have final approval of the condition of such streets and public places after completion of construction.

11. City expense; 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 notice of its estimated actual administrative expenses when those charges exceed or are estimated to exceed an average daily rate over the life of the permit equal to two (2) times the city’s regularly hourly charge for review and inspection.

(Ord. No. 3107, § 2, 5-4-93)

7.12.210 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. No. 3107, § 2, 5-4-93)

7.12.220 Customer service.

A. A franchisee shall render repair service to restore the quality of the signal at approximately the same standards existing prior to the failure or damage of the component causing the failure and make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system.

A log of all service interruptions shall be maintained and kept on file by a franchisee. The city, after two (2) working days’ notice, may inspect such logs.

B. Installation work shall be performed in a timely manner. The franchisee shall offer a choice of morning, afternoon or late afternoon appointments, within a four (4) hour time period. If the franchisee fails to keep a scheduled appointment with a subscriber, and fails to give notice to the subscriber at least two (2) hours prior to the scheduled appointment time, the franchisee shall give a service credit to that subscriber unless failure of notice is caused by acts of God.

C. An employee of a franchisee shall answer and respond to all individual complaints received prior to 5:00 p.m. weekdays. A franchisee may use an answering service to receive complaints after 5:00 p.m. weekdays and on weekends and holidays and will promptly respond to any system outage affecting more than five (5) subscribers. A copy of the instructions to the answering service by a franchisee shall be furnished to the city or its designee.

D. A standby technician shall be on call seven (7) days a week, twenty-four (24) hours a day. A franchisee shall respond immediately to service complaints in an efficient manner.

E. A franchisee shall maintain a sufficient repair force to respond to individual requests for repair service within forty-eight (48) hours after receipt of the complaint or request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven (7) days. If a subscriber has notified a franchisee of an outage, no charge for the period of the outage shall be made to the subscriber if the subscriber was without service for a period exceeding twenty-four (24) hours, unless the outage was due to acts of God, force majeure or circumstances reasonably beyond a franchisee’s ability to control.

F. A franchisee shall supply at the time of a new connection, and periodically at least once a year, the title, address, and telephone number of the city official or his/her designee, to whom system subscribers may direct their concerns.

G. In no case will a franchisee’s service standards fall below the standards established by the NCTA which are attached herein as Appendix A and are made a part of this chapter by this reference.

(Ord. No. 3107, § 2, 5-4-93)

7.12.230 Telephone response.

A franchisee shall maintain an adequate force of customer service representatives as well as incoming trunk lines so that telephone inquiries are met promptly and responsively. A franchisee shall have in place procedures for utilization of other manpower and/or recording devices for handling the flow of telephone calls at peak periods of large outages or other major causes of subscriber concern. A copy of such procedures and/or policies shall be made available to the city. Under normal operating conditions, telephone answer time by the franchisee, shall not exceed thirty (30) seconds, average speed of answer, and busy signals shall not occur more than three (3) percent of the time. This requirement shall be met at least ninety (90) percent of the time, measured over any consecutive ninety (90) day period. The franchisee shall use an answering service or be capable of receiving service complaints and system malfunction reports when the business office is closed.

In order that the city may be informed of a franchisee’s success in achieving satisfactory customer relations in its telephone answering functions, a franchisee shall, upon request by the city, and routinely no less than quarterly, provide the city with a summary that will provide, at a minimum, the following:

1. Number of calls received in a reporting period;

2. Time taken to answer;

3. Average talk time;

4. Number of calls abandoned by the caller;

5. Average hold time;

6. Percentage of time all lines busy; and

7. An explanation of any abnormalities.

This data will be compared to minimum standards of the NCTA being incorporated herein by reference or any amendment thereto increasing such standards, and shall be monitored by the city.

Calls for service generated during periods of system outages due to emergency affecting more than twenty-five (25) customers may be excluded from the service response calculations. The city shall have the sole determination as to what constitutes a system failure due to emergency and which calls shall be excluded from the service level calculations.

(Ord. No. 3107, § 2, 5-4-93)

7.12.240 Rates.

A. 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.

B. The city will follow the Federal Communications Commission Rate Regulations in the city’s regulation of basic service tier rates and charges for related equipment, installation and services, as those terms are defined in the Cable Television Consumer Protection and Competition Act of 1992 (hereinafter, “basic service rates and charges”) of all cable television system franchisees operating in the city, notwithstanding any different or inconsistent provisions in the franchise.

1. In connection with such regulation, the city will ensure a reasonable opportunity for consideration of the views of interested parties.

2. The mayor, or his designate, is authorized to execute on behalf of the city and file with the FCC such certification forms or other instruments as are now or may hereafter be required by the FCC rate regulations in order to enable the city to regulate basic service rates and charges.

C. Within thirty (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 thirty (30) days’ written notice of the new schedule of rates to be charged.

(Ord. No. 3107, § 2, 5-4-93; Ord. No. 3151, § 2, 1-18-94)

7.12.250 Senior citizen/disabled person low-income discount.

A franchisee shall offer a discount of thirty (30) percent from the normal rate to subscribers for basic services and installation to those persons who are aged sixty-two (62) or older, and/or disabled; provided, that such person(s) are the legal owner of lessee/tenant of their residence and that their combined disposable income from all sources does not exceed the housing and urban development standards for the Seattle-Everett area for the current and preceding calendar year.

The city or its designee shall be responsible for certifying to a franchisee that such applicants conform to the specified criteria.

(Ord. No. 3107, § 2, 5-4-93)

7.12.260 Cable availability.

Cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

(Ord. No. 3107, § 2, 5-4-93)

7.12.270 Extraordinary installation.

All residents requesting cable service and living within one hundred fifty (150) feet of existing cable distribution lines shall have the cable installed at the prevailing published installation rate.

In the event a request is made for service and the residence is more than one hundred fifty (150) feet from an existing cable distribution line, such installation shall be completed on a time and material cost basis for that portion of the service line extending beyond one hundred fifty (150) feet.

(Ord. No. 3107, § 2, 5-4-93)

7.12.280 Distribution line extension charges.

Cable service shall be available to all residents within the city, provided there are at least thirty-five (35) dwelling units per street mile.

In the event a request is made for service by a resident(s) living in an area not meeting such criteria, the franchisee shall enter into a contractual agreement with the resident(s) requesting service wherein the franchisee shall be reimbursed for its construction costs. Whenever any subsequent subscriber who did not contribute to the original cost of the extension connects to the extended distribution service line, that subscriber shall pay his/her pro-rata share directly to the franchisee prior to obtaining cable service. The franchisee shall then promptly tender such payment to the original subscriber so long as the agreement remains in force.

Reimbursement shall be calculated on a front foot basis as a percentage of the total cost of the service line extension. Reimbursements shall be made to the original subscriber for a period of up to five (5) years or to the point when the franchisee has recovered its incremental costs to construct the distribution service line.

The franchisee shall record its contractual agreement with the original subscriber in the office of the King County recorder before any subsequent subscriber connects to the extended service line.

(Ord. No. 3107, § 2, 5-4-93)

7.12.290 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 D 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. No. 3107, § 2, 5-4-93)

7.12.300 Programming.

For informational purposes a franchisee shall file a listing of its programming and the tiers in which they are placed. A franchisee shall consider the city’s suggestions of general program categories as determined from time to time in residential questionnaire polls. The results of initial surveys will be appended to the respective franchise ordinances.

(Ord. No. 3107, § 2, 5-4-93)

7.12.310 Technical standards.

A franchisee shall comply with the following technical standards:

1. All federal statutes, rules and regulations, including, but not limited to the FCC rules, Part 76, Subpart K, Section 76.601 through 76.610, as each may be hereafter amended;

2. All applicable city, King County, and state of Washington statutes, ordinances, rules and regulations;

3. All applicable joint utility attachment practices;

4. The National Electric Safety Code; ANSI C2;

5. All local utility code requirements and rights-of-way procedures.

(Ord. No. 3107, § 2, 5-4-93)

7.12.320 Preventive maintenance.

A franchisee shall develop comprehensive, routine preventive maintenance programs and effectuate same in order to ensure the continued, top quality cable communications operating standards as defined and in conformance with this chapter and all other local, state and federal statutes, rules or regulations promulgated on the subject.

(Ord. No. 3107, § 2, 5-4-93)

7.12.330 Parental control devices.

A franchisee will make available at its cost (including appropriate handling charges) a device by which the subscriber can prohibit viewing of a particular cable service during periods individually selected.

(Ord. No. 3107, § 2, 5-4-93)

7.12.340 Equalization of civic contributions.

In the event of one (1) or more franchises being granted, the city may require that such subsequent 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, bi-directional 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) 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 over an interconnection agreement as contemplated under this section, may be called upon to arbitrate the dispute.

(Ord. No. 3107, § 2, 5-4-93)

7.12.350 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. No. 3107, § 2, 5-4-93)

7.12.360 Obligation to comply promptly.

Time shall be of the essence in any franchise granted under this chapter. A franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of this chapter by any failure of the city to enforce compliance.

(Ord. No. 3107, § 2, 5-4-93)

7.12.370 Transfer of powers to other city officers or employees.

For purposes of the administration of this chapter, any right or power conferred or impressed upon any officer, employee, department or board of the city shall be subject to transfer by the city to any other officer, employee, department or board of the city or its designee.

(Ord. No. 3107, § 2, 5-4-93)

7.12.380 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. No. 3107, § 2, 5-4-93)

7.12.390 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 one hundred eighty (180) days be deemed unreasonable pursuant to this section.

(Ord. No. 3107, § 2, 5-4-93)

7.12.400 Modification by franchisee.

During the period that a franchise is in effect, a franchisee may seek modifications of the franchise requirements in accordance with the conditions set forth in the Act.

Any decision by the council to modify a franchise shall be made in a public hearing. Such decision shall be made within one hundred twenty (120) days after the city’s receipt of a request by the franchisee, unless the one hundred twenty (120) day period is extended by mutual agreement of the city and franchisee.

(Ord. No. 3107, § 2, 5-4-93)

7.12.410 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.

During an evaluation session, a franchisee shall fully cooperate with the city and shall provide without cost such reasonable information and documents as the city may request to perform evaluations.

If the city has concerns because of reoccurring problems with the franchisee’s cable system it may retain an independent consultant to conduct an analysis of the cable system and its performance and submit a report of such analysis to the city. The city shall take into consideration any efforts taken to correct such deficiencies.

The report prepared by the consultant in response to the city’s request for a system evaluation shall include:

1. A description of the technical problem in cable system performance which precipitated the special tests;

2. What cable system components were tested;

3. The equipment used and procedures employed in testing;

4. The method, if any, by which specific performance problems may be resolved;

5. Any other information pertinent to said tests and analyses which may be required by the city, or determined when the test is performed.

If the tests indicate that the system is not in compliance with FCC standards or the requirements of the franchise, a franchisee shall reimburse the city for any costs involved in conducting such tests, such as consultant fees or other expenses.

Such fees or expenses shall not exceed two thousand five hundred dollars ($2,500) for each evaluation. This figure is based on 1993 dollars and shall be adjusted for inflation.

(Ord. No. 3107, § 2, 5-4-93)

7.12.420 Record inspection.

Subject to statutory and constitutional limits and two (2) 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. No. 3107, § 2, 5-4-93)

7.12.430 Reports.

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

1. Most recent annual report.

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

3. The number of homes to which cable is made available.

4. The number of subscribers with basic services.

5. The number of subscribers with premium services.

6. The number of hook-ups in period.

7. The number of disconnects in period.

8. Total number of miles of cable in city.

9. Summary of complaints received by category, length of time taken to resolve and action taken to provide resolution.

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

11. A current copy of its subscriber service contract.

12. Report on operations. Such other reports with respect to its local operation, affairs, transactions or property that may be appropriate.

(Ord. No. 3107, § 2, 5-4-93)

7.12.440 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 forty-five (45) days from the date of notice of noncompliance to cure such alleged default or, if such default cannot be cured within forty-five (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 thirty (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 may recover damages and costs incurred by the city by reason of a franchisee’s failure to comply.

(Ord. No. 3107, § 2, 5-4-93)

7.12.450 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. No. 3107, § 2, 5-4-93)

7.12.460 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. No. 3107, § 2, 5-4-93)

7.12.470 Effect on 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. No. 3107, § 2, 5-4-93)

7.12.480 Incorporation by reference into each franchise.

The Cable Communications 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. No. 3107, § 2, 5-4-93)