Chapter 7.12 CABLE COMMUNICATIONS

The ordinance codified in this chapter shall constitute the “cable communications ordinance” of the city and may be referred to as such. (Ord. 1335-99 § 1 (part), 1999)

7.12.020 Purpose.

It is the purpose of this chapter to regulate in the public interest the operation of cable communications systems 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 Sedro-Woolley. The requirements of this chapter are in addition to the requirements, regulations and fees imposed by any other ordinance governing the use of city streets, right-of-ways and property interests by franchisees, and not in lieu thereof. (Ord. 1335-99 § 1 (part), 1999)

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.

A. “Access channels” means those channels designated and maintained by a cable communications system for programming not under the editorial control of the operator, including local government, educational and public access channels.

B. “The Act” means the Cable Communication Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and any subsequent amendments.

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

D. The term “affiliate” when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.

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

F. “Basic service” means any service tier which includes the retransmission of local television broadcast signals.

G. “Cable service” means:

1. The one-way transmission to subscribers of: (i) video programming; or (ii) other programming service, and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

H. “Cable system,” “cable communications system” or “CATV system”; these words are used interchangeably for the purpose of this chapter and mean 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, including transmitting and receiving all other signals, data, digital, voice and audio-visual, over a cable system, unless covered by a separate franchise or similar authority, which includes video programming and which is provided to multiple subscribers within a community.

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

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

K. “City” means the City of Sedro-Woolley, a municipal corporation of the state of Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated from.

L. “Council” means the city council of the city of Sedro-Woolley or any future body constituting the legislative body of the city.

M. “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 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. “Expanded basic service” means that service tier which includes all services provided not included within the basic service tier and not including premium or pay for view channels.

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

Q. “Fiber optics” refers to a transmission medium of optical fiber cable, along with all associated electronics and equipment capable of carrying cable services by means of electric light wave impulses.

R. “Franchise” means an initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to Section 626), issued by the city, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of a cable system, including transmitting and receiving all other signals, data, digital, voice and audio-visual, over a cable system, unless covered by a separate franchise or similar authority.

S. “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.

T. “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.

U. “Gross revenues” means any and all compensation in whatever form, from any source, directly or indirectly earned by grantee, or any other person or affiliate of grantee who would constitute a cable operator of the cable system under the Cable Act, derived from the operation of the cable system to provide cable service. Amounts identified by the city as copyright, or other license fees, shall not be excluded from gross revenues. Gross revenues shall include basic, expanded basic and pay service revenues, revenues from installation and equipment rental and sale, the applicable percentage of local advertising revenues, and any leased access revenues.

1. Gross revenues shall not include any taxes on service furnished by grantee, which taxes are imposed directly on a subscriber or user by a city, county, state or other governmental unity, and collected by grantee for such entity. Gross revenues shall not include amounts which cannot be collected by grantee and are identified as bad debt; once collected, then those amounts shall be included in gross revenues for the period in which they are collect.

2. Amounts included in gross revenues shall not be counted more than once; therefore, amounts included once in grantee’s gross revenues shall not be added to gross revenues again if they are received by an affiliate of grantee in payment for programming or other goods or services supplied to grantee.

3. “Gross revenues” shall not include compensation for telecommunications services as defined by state law if subject to the city utility tax for such services.

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

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

X. “Insertion point(s)” means location(s) where institutional programming can be initiated for distribution throughout the cable system.

Y. “Installation” means the connection of the system from feeder cable to subscribers’ tap.

Z. “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.

AA. “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 of for any other purpose; or (ii) transmits signals to any other location for any purpose.

BB. “Interconnect” means the sharing of video, audio and/or data transmissions between two or more cable systems, institutional networks and/or users.

CC. “NCTA” means the National Cable Television Association.

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

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

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

GG. “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.

HH. “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 serviced in the city.

II. “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.

JJ. “Subscriber” means a person or entity received for consideration any service of a franchisee’s cable communications system. (Ord. 1335-99 § 1 (part), 1999)

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, such 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 franchisee.

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

2. 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 applicable codes and ordinances of the city with regard to permits, fees to be paid, the use of city streets, right-of-way, or property interests 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 and any applicable ordinance governing the use of public streets, rights-of-way or property interests.

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. 1335-99 § 1 (part), 1999)

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 lawful police powers. (Ord. 1335-99 § 1 (part), 1999)

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:

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

B. A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to, the following and to whatever extent may reasonably be required by the city:

1. The names, residence and business addresses of all officers and directors of the applicant,

2. The names and addresses of all persons having, controlling or being entitled to have or control five percent or more of the ownership of the applicant, either directly or indirectly, and the respective ownership share of each such person,

3. 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,

4. 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,

5. 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;

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

1. 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 organization throughout the entire service area,

2. 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 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,

3. 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 standard be less than those contained in the rules of the FCC,

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

5. 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 related to or depend upon the granting of the franchise,

D. 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

E. 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. 1335-99 § 1 (part), 1999)

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 weeks preceding such hearing; provided, that no two or more applications shall be considered at any one hearing except by consent of the applicants. The notice shall state the name of each proposed franchisee for each cable district and the place were 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. 1335-99 § 1 (part), 1999)

7.12.080 Consideration 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:

A. The quality of the service proposed;

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

C. 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;

D. The technical and performance quality of equipment:

E. The program proposed for construction; and

F. The applicant’s ability to meet construction 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 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 reside. (Ord. 1335-99 § 1 (part), 1999)

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. 1335-99 § 1 (part), 1999)

7.12.100 Procedure for renewal of franchise.

The procedure for renewing any franchise granted pursuant to this chapter shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law.

In addition to the procedures set forth in said Section 626(a), the city agrees to notify the franchisee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of the franchisee under the then current franchise term. The city further agrees that such a preliminary assessment shall be provided to the franchisee promptly so that the franchisee has adequate time to submit a proposal under Section 626(b) of the Cable Act and complete renewal of the franchise prior to expiration of its term. Notwithstanding anything to the contrary set forth in this section, the franchisee and city agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, the city and the franchisee may agree to undertake and finalize informal negotiations regarding renewal of the then current franchise and the city may grant a renewal thereof. The franchisee and the city consider the terms set forth in this section to be consistent with the express provisions of Section 626 of the Cable Act.

A. Upon receipt of any formal proposal for the 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 Section 7.12.070.

B. The council shall consider public testimony and comment in the same manner as set forth in Section 7.12.080, but shall instead consider the criteria for granting or denying any franchise renewal pursuant to Section 626(c)(I).

C. In any hearing for a franchise renewal, the operator 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 state its reasons for granting or denying the renewal based upon the record of such proceeding, and shall communicate its decision to the operator. (Ord. 1335-99 § 1 (part), 1999)

7.12.110 Transfer of ownership.

A. 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 city, 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 transfer is from a franchisee to another person or entity controlling, controlled by, or under common control with a franchisee.

B. 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.

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

D. Regardless of the circumstance, a franchisee shall promptly notify the city prior to any proposed change, transfer or acquisition by any other party of a franchisee’s company. Within thirty days of receiving the request for transfer, the city shall, in accordance with the Cable Act and FCC Rules and Regulations, notify the franchisee in writing of the information it requires to determine the legal, financial and technical qualifications of the transferee. If the city has not taken action on the franchisee’s request for transfer within one hundred twenty days after receiving such request, consent by the city, shall be deemed given. (Ord. 1335-99 § 1 (part), 1999)

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 and in such franchise.

B. The written acceptance shall be filed by a franchisee not later than sixty 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. 1335-99 § 1 (part), 1999)

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 days of such finding. A guarantee in lieu of bond may be accepted by the city in lieu of a performance bond or other surety. (Ord. 1335-99 § 1 (part), 1999)

7.12.140 Franchise fee and utility tax.

The city may impose a franchise fee and/or a utility tax in accordance with state and federal law as now existing or as hereafter amended. A franchisee fee and utility tax shall comply with the terms of any applicable statute, law or regulation governing a utility tax, or governing a franchise fee for use of the public streets, right-of-way or property interest. (Ord. 1335-99 § 1 (part), 1999)

7.12.150 Indemnity.

A. 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 duly authorized 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 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 claim at its sole cost and expense, by attorneys of its own decision.

B. In case final 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 days after such action or suit shall have been finally determined, if any, if determined adversely to either party. (Ord. 1335-99 § 1 (part), 1999)

7.12.160 Insurance.

Repealed by Ord. 1872-17. (Ord. 1335-99 § 1 (part), 1999)

7.12.170 Franchisee’s obligations to the public.

A franchisee, in the use of a public street and right-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. 1335-99 § 1 (part), 1999)

7.12.180 City’s right to make improvements.

A. Nothing in this ordinance 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.

B. 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.

C. 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 existing facilities to be relocated. Provided, however, the city shall make the final determination on the need for relocation of a franchisee’s facilities.

D. 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 days written notice unless an emergency exists requiring such relocation, which shall be completed by a franchisee at no cost and with in 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. 1335-99 § 1 (part), 1999)

7.12.190 Permits required—Terms of use and occupancy of streets.

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

A. Safety Requirements. 1. 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.

2. 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.

3. 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, should such a permit be required, 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.

C. Undergrounding. In any area of the city in which telephone, electric power wires and cable 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, 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. Nothing contained in this chapter shall prohibit the franchisee from including its cost in any local improvement district if allowed under applicable law.

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 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.

E. Building Moving. Whenever a person shall have obtained permission from the city to use any street for the purpose of moving any building, franchisee, upon seven days written notice from the city and payment in full by the permittee desiring to move the building, shall raise or remove any of the 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 city’s director of public works.

F. Relocation of Facilities. A franchisee shall, unless an emergency arises, upon thirty 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 Section 7.12.190.

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 appurtenance, 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.

H. 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 of 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.

I. Dangerous Condition, Authority of City to Abate. 1. 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.

2. 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.

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

K. City Fees. Franchisee shall pay all fees and assessments of general applicability imposed by the city for permits, licenses, inspections and other construction activities as provided by applicable law. (Ord. 1335-99 § 1 (part), 1999)

7.12.200 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. 1335-99 § 1 (part), 1999)

7.12.210 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. A log of all service interruptions shall be maintained and kept on file by a franchisee. The city, after two 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-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 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 or inability of subscriber to receive notification.

C. An employee of franchisee shall do whatever is feasible to correct a problem reported to franchisee prior to five p.m. weekdays. A franchisee may use an answering service to receive complaints after five p.m. weekdays and on weekends and holidays and will promptly respond to any system outage affecting more than five subscribers.

D. A standby technician shall be on call seven days a week, twenty-four hours a day. A franchisee shall respond 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 hours after receipt of the complaint or requests, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days. If a subscriber has notified a franchisee of an outage, subscriber may request credit and upon verification of outage, receive credit for the period of the outage if the subscriber was without service for a period exceeding twenty-four 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 as Appendix A to the ordinance codified in this chapter and are made a part of this chapter by this reference, together with any amendments or changes made thereto. (Ord. 1335-99 § 1 (part), 1999)

7.12.220 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 responsibly. 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 seconds, average speed of answer, and busy signals shall not occur more than three percent of the time. This requirement shall be met at least ninety percent of the time, measured over any consecutive ninety-day period. The franchisee shall use an answering service or be capable of receiving service complaints and system malfunctions 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:

A. Number of calls received in a reporting period;

B. Average time taken to answer;

C. Average talk time;

D. Number of calls abandoned by the caller;

E. Average hold time;

F. Percentage of time all lines busy; and

G. 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.

The reports required hereunder can be system wide reports as opposed to reports relating solely to the city of Sedro-Woolley, if franchisee is unable to generate those reports for the specific franchise area. (Ord. 1335-99 § 1 (part), 1999)

7.12.230 Rates.

A. The city reserves the right to regulate rates or charges for any service within the limits of federal and state law (including any subsequent enactment and amendments), to enforce rate regulations prescribed by the FCC, and to establish procedures for such regulation or enforcement.

B. Within thirty 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 days’ written notice of the new schedule of rates to be charged. (Ord. 1335-99 § 1 (part), 1999)

7.12.240 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. 1335-99 § 1 (part), 1999)

7.12.250 Extraordinary installation.

A. All residents requesting cable service and living within one hundred twenty-five feet of existing cable distribution lines shall have the cable installed at the prevailing published installation rate.

B. In the event a request is made for service and the residence is more than one hundred twenty-five feet from an existing cable distribution line, such installation shall be completed on a time and material costs basis for that portion of the service line extending beyond one hundred twenty-five feet. (Ord. 1335-99 § 1 (part), 1999)

7.12.260 Distribution line extension charges.

A. Cable service shall be available to all residents within the city; provided, there are at least twenty-five dwelling units per street mile.

B. 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. (Ord. 1335-99 § 1 (part), 1999)

7.12.270 Nondiscrimination.

A. 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.

B. 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. 1335-99 § 1 (part), 1999)

7.12.280 Programming.

A franchisee shall file a listing of its programming and the tiers in which they are placed at the time the franchise is initially granted and whenever any changes are made. Upon request, but no more often than annually, the franchisee shall conduct a customer questionnaire poll to determine program preferences of customers. The city council may hold a public hearing to take testimony and discuss the results of such customer questionnaire polls concerning programming, and may make recommendations to the franchisee. The franchisee shall send a representative to appear at the hearing and shall consider the results of the customer polls and the recommendations of the city in making its programming decisions. (Ord. 1335-99 § 1 (part), 1999)

7.12.290 Technical standards.

A franchisee shall comply with the following technical standards:

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

B. All applicable city, county and state statutes, ordinances, rules and regulations;

C. All applicable joint utility attachment practices;

D. The National Electric Safety Code; ANSI C2;

E. All local utility code requirements and rights-of-way procedures. (Ord. 1335-99 § 1 (part), 1999)

7.12.300 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. 1335-99 § 1 (part), 1999)

7.12.310 Parental control devices.

A franchisee shall provide at its actual costs a method of blocking out or trapping out a channel or channels on basic or expanded basic for a subscriber if the subscriber finds the programming objectionable. (Ord. 1335-99 § 1 (part), 1999)

7.12.320 Equalization of civic contributions.

A. In the event of one 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.

B. 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 contributed by the original franchisee.

C. 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 7.12.340, may be called upon to arbitrate the dispute. (Ord. 1335-99 § 1 (part), 1999)

7.12.330 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 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. 1335-99 § 1 (part), 1999)

7.12.340 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. 1335-99 § 1 (part), 1999)

7.12.350 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. 1335-99 § 1 (part), 1999)

7.12.360 No recourse against the city for loss or expense.

A franchisee shall have no monetary recourse or monetary judgment 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; provided, however that this section does not preclude any action for injunctive or declaratory relief that may be brought by the franchisee. (Ord. 1335-99 § 1 (part), 1999)

7.12.370 Subsequent action by state or federal agencies.

If any section, sentence, paragraph, term or provision of this chapter is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no affect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the franchise, or any renewal or renewals thereof. (Ord. 1335-99 § 1 (part), 1999)

7.12.380 Modification of franchise.

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

B. A decision by the council to modify a franchise shall be made in a public hearing. Such decision shall be made within one hundred twenty days after the city’s receipt of a request by the franchisee, unless the one hundred twenty-day period is extended by mutual consent of the city and franchisee. (Ord. 1335-99 § 1 (part), 1999)

7.12.390 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 recurring technical problems with the franchisee’s cable system it may retain an independent consultant to conduct an analysis, upon thirty days’ written notice to the franchisee, 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:

A. A description of the technical problem(s) in cable system performance which precipitate the special tests;

B. What cable system components were tested;

C. The equipment used and procedures employed in testing;

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

E. Any other information pertinent to such 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 the amount listed in the master fee schedule adopted by resolution of the city council for each evaluation. (Ord. 2013-22 § 20, 2022; Ord. 1335-99 § 1 (part), 1999)

7.12.400 Record inspection.

Subject to statutory and constitutional limits and two working day’s 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. 1335-99 § 1 (part), 1999)

7.12.410 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 to which cable is made available;

D. The number of subscribers with basic services;

E. The number of subscribers with premium services;

F. The number of installations in period;

G. The number of disconnects in period;

H. Total number of miles of cable in city;

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

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

K. A current copy of its subscriber service contract;

L. Report on Operations. Such other reports with respect to operation of the cable system within the franchise area relating to franchise compliance as the city deems necessary. (Ord. 1335-99 § 1 (part), 1999)

7.12.420 Termination and revocation.

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

B. 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 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. 1335-99 § 1 (part), 1999)

7.12.430 Remedies to enforce compliance.

In addition to any other remedy provided in this chapter, 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. 1335-99 § 1 (part), 1999)

7.12.440 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. 1335-99 § 1 (part), 1999)

7.12.450 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. 1335-99 § 1 (part), 1999)

7.12.460 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. 1335-99 § 1 (part), 1999)